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KOLGANOV v. PHILLIPS & COHEN ASSOCIATES

April 8, 2004.

ANDREY KOLGANOV, on behalf of himself and all others similarly situated, Plaintiff,
v.
PHILLIPS & COHEN ASSOCIATES, LTD., Defendant.



The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge

OPINION & ORDER

I. Introduction

Plaintiff Andrey Kolganov ("plaintiff" or "Kolganov") commenced this suit against defendant Phillips & Cohen Associates, Ltd. ("defendant" or "P&C") alleging violations of the Fair Debt Collection Practices Act (the "FDCPA" or the "Act"), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (the "FCCPA"), Fla. Stat. § 559.72. P&C moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

  II. Background

  Plaintiff received a collection letter from P&C dated January 11, 2002. (Compl., exh. A). On June 25, 2002, plaintiff filed this action alleging that P&C violated §§ 1692e and 1692g of the FDCPA. Specifically, plaintiff claims that the letter fails to specify the amount of debt owed and requires an immediate oral communication in violation of 15 U.S.C. § 1692g(a)(1) and (a)(4). (Id. at 5). Plaintiff further alleges that the letter overshadows 15 U.S.C. § 1692g by demanding immediate contact. (Id.). Although plaintiff originally claimed that the use of "Esq." after the name "Adam S. Cohen" violated 15 U.S.C. § 1692e(3) and F.S.A. § 559.72 in that it deceptively implies that P&C is a law firm, (id. at 6), he has since withdrawn this claim. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 12).

  III. Summary Judgment Standard of Review

  Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. Id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id. at 252; Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

  IV. Analysis

  Congress enacted the FDCPA to protect consumers from abusive, threatening, deceitful and otherwise unscrupulous debt collection practices. Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996). A written validation notice stating the amount of the debt and the name of the creditor, among other requirements, is mandated by 15 U.S.C. § 1692g when a debt collector solicits payment from a consumer. The FDCPA is a strict liability statute, and thus "a consumer need not show intentional conduct by the debt collector to be entitled to damages." Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 217 F. Supp.2d 336, 339 (E.D.N.Y. 2002) (quoting Russell, 74 F.3d at 36).

  In order to determine whether the FDCPA has been violated, a court must apply an objective standard, measured by how the "least sophisticated consumer" would interpret the debt collector's notice. DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001); Schweizer v. Trans Union Corp., 136 F.3d 233, 237 (2d Cir. 1998). The purpose of this objective standard is to "ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). Using this standard, the court must determine whether the collection letter "can be reasonably read to have two or more different meanings, one of which is inaccurate." Russell, 74 F.3d at 35 (emphasis added).

  A debt collection letter must include: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement indicating that, unless the debtor disputes the validity of the debt within thirty days of receiving the debt collection letter, the debt will be presumed valid; (4) a statement indicating that, if the debtor notifies the debt collector in writing within thirty days of receiving the debt collection letter that the debt is disputed, the debt collector will obtain verification of the debt and mail a copy of the verification to the debtor; and (5) a statement indicating that, if requested in writing by the debtor within thirty days of receiving the debt collection letter, the debt collector will provide the debtor with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a)(1)-(5). This information, commonly referred to as a "validation notice," arms the consumer with the facts necessary to challenge the debt allegedly owed prior to submitting payment to the collection agency. Russell, 74 F.3d at 32-33; Rumpler v. Phillips & Cohen Assocs., 219 F. Supp.2d 251, 258 (E.D.N.Y. 2002).

  "However, `it is not enough for a debt collection agency simply to include the proper debt validation notice in a mailing to a consumer — Congress intended that such notice be clearly conveyed.'" Rumpler, 219 F. Supp.2d at 258 (quoting Russell, 74 F.3d at 35). The FDCPA is violated where a debt collection letter contains language that "overshadows or contradicts" language in the validation notice. Russell, 74 F.3d at 34. A debt collection letter is overshadowing or contradictory if it "fails to convey the validation information clearly and effectively and thereby makes the least sophisticated consumer uncertain" as to their rights. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (2d Cir. 2003) (quoting Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998)); see also Orenbuch v. N. Shore Health Sys., 250 F. Supp.2d 145, 153 (E.D.N.Y. 2003) (same). The FDCPA is also violated if the collector conveys the required information "in a confusing or contradictory fashion so as to cloud the required message with uncertainty." DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001); Rumpler, 219 F. Supp.2d at 258.

  A. Amount of the Debt

  The collection letter's second paragraph reads: "You are hereby notified that the above balance does not include the most recent charges assessed, any applicable over the limit fees, or your most recent daily interest charges. In order to obtain your most current balance information, please call 1-800-889-2223." (Compl., exh. A). Plaintiff claims that although the letter lists the outstanding balance as $7,562.00, it fails to include ...


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