United States District Court, E.D. New York
June 9, 2004.
ALFONSO PUJOL, Plaintiff,
UNIVERSAL FIDELITY CORPORATION, Defendant.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Plaintiff Alfonso Pujol ("Pujol" or "debtor") has filed this
putative class action against defendant Universal Fidelity
Corporation ("Fidelity" or "defendant") alleging violations of
the Fair Debt Collection Practices Act ("FDCPA" or the "Act"),
15 U.S.C. § 1692 et seq. Fidelity now moves to dismiss Pujol's
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim on which relief can be granted. In
the alternative, it moves for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the reasons set forth
below, I grant summary judgment in favor of Fidelity on all
The case arises out of a debt collection letter (the "Letter")
regarding money Pujol purportedly owed to Sprint PCS ("Sprint" or
"creditor"), one of Fidelity's clients. The Letter is from John
Lee Jackson, an in-house corporate attorney for Fidelity. The
Letter reads as follows:
Dear ALFONSO R. PUJOL,
I serve as In-House Attorney and I am an employee of
Universal Fidelity Corporation. Universal Fidelity
Corporation is my only source of employment and one
of my responsibilities is to oversee the collection
process and advise them in matter of corporate law.
OUR CLIENT HAS AGREED TO ACCEPT 80% OF THE ABOVE
BALANCE*fn1 AS SETTLED IN FULL. THE FUNDS OF
$349.70 MUST BE RECEIVED IN THIS OFFICE WITHIN (10)
TEN DAYS OF THE RECEIPT OF THIS LETTER OR THE OFFER
IS RESCINDED. UPON RECEIPT OF FUNDS AND CLEARANCE
THROUGH THE BANKING SYSTEM, WE WILL CONSIDER THE
ABOVE ACCOUNT AS SETTLED.
Do not consider this letter a notification of intent
to sue, since I do not have the legal authority to
sue. I have not, nor will I, review each detail of
your account status, unless you so request.
For your convenience we will accept your payment by
phone through electronic check, Visa, Mastercard and
American Express. We are pleased to assist you in
A. Converting a Motion to Dismiss to a Summary Judgment Motion
Fidelity has moved for a dismissal of the complaint for failure
to state a claim, or, in the alternative, for summary judgment.
On a motion to dismiss, my consideration is limited to the
complaint, to "documents attached to the complaint as an exhibit
or incorporated in it by reference, to matters of which judicial
notice may be taken, or to documents either in [plaintiff's] possession or of which [plaintiff] had knowledge and relied on in
bringing suit." Brass v. American Film Technologies, Inc.,
987 F.2d 142, 150 (2d Cir. 1993); see also Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Rothman v.
Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Thus, I may properly
consider the disputed dunning letter that Pujol has annexed to
his complaint in determining the motion under Rule 12(b)(6).
I cannot properly consider under that rule the two affidavits
that Fidelity has submitted in support of its motion. The
affidavits are from Jackson and from Gary B. Goolsby, President
of Fidelity. Consideration of these extra-pleading attachments is
only permissible if I treat the motion as a motion for summary
judgment. See Fed.R.Civ.P. 12(b);*fn2 Chambers, 282
F.3d at 154 (conversion to summary judgment strictly enforced
whenever extra-pleading material is considered in a motion to
Conversion is appropriate here. There is no surprise to Pujol
in treating the motion as one for summary judgment.*fn3
Fidelity's motion expressly sought summary judgment in the
alternative; it submitted affidavits to that end; and Pujol's
papers in opposition are written in terms of summary judgment.
(See Pl's Mem. Opp. Def's Mot. Summ. J. ("Pl's Mem.") at 6.) Furthermore, because there are no disputed issues of material
fact and no demonstrated need or desire by the plaintiff for
discovery of the defendant, conversion here is especially
B. The Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the
moving party is entitled to summary judgment "if 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). The substantive law governing the case identifies the
facts that are material, and "only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment
is warranted only if "the evidence is such that a reasonable jury
could not return a verdict for the nonmoving party." Id.
Moreover, "the inferences to be drawn from the underlying facts
. . . must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted). Once the moving party has met its burden, the
opposing party "must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he
non-moving party must come forward with `specific facts showing
that there is a genuine issue for trial.'" Id. at 586-87
(quoting Fed.R.Civ.P. 56(e)).
C. The Fair Debt Collection Practices Act The FDCPA was enacted to "eliminate abusive debt collection
practices by debt collectors, [and] to insure that those debt
collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged."
15 U.S.C. § 1692(e); see also Kropelnicki v. Siegel, 290 F.3d 118, 127
(2d Cir. 2002) ("The FDCPA was passed to protect consumers from
deceptive or harassing actions taken by debt collectors.") In
particular, the Act's legislative history reveals that the need
for the law "arose because of collection abuses such as use of
`obscene or profane language, threats of violence, telephone
calls at unreasonable hours, misrepresentation of a consumer's
legal rights, disclosing a consumer's personal affairs to
friends, neighbors, or an employer, obtaining information about a
consumer through false pretense, impersonating public officials
and attorneys, and simulating legal process.'" Kropelnicki, 290
F.3d at 127 (quoting S. Rep. No. 95-382, at 2 (1977), reprinted
in 1977 U.S.C.C.A.N. 1695, 1696). The Act tries to prevent and
punish debt collection practices that are "unfair, deceptive, or
Under the Act, the court must interpret the offending
communication as the "least sophisticated consumer" would
interpret it. See Clomon v. Jackson, 988 F.2d 1314, 1319-20
(2d Cir. 1993). "This objective standard is designed to protect
all consumers, the gullible as well as the shrewd, while at the
same time protecting debt collectors from liability for bizarre
or idiosyncratic interpretations of collection notices." Maguire
v. Citicorp Retail Servs., Inc., 147 F.3d 232, 236 (2d Cir.
1998) (quotations and citation omitted). In applying this
objective standard, a court is required to determine, for
example, whether the collection letter is "overshadowing or
contradictory," or whether it "can be reasonably read to have two
or more different meanings, one of which is inaccurate." Russell
v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996). D. Pujol's Claims
1. Deceptive Means to Collect a Debt: Section 1692e(10)
Section 1692e(10) prohibits "[t]he use of any false
representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a consumer."
15 U.S.C. § 1692e(10). Pujol charges that the Letter violates
this provision because it stated that if he paid 80% of the debt,
the debt would be settled in full. Pujol does not state in the
complaint or in his papers why this statement is deceptive. In
opposition to the motion for summary judgment, he states:
"Because defendant has not conducted any discovery, defendant has
not learned the theory of plaintiff's case. Therefore, plaintiff
submits that it is premature for the defendant to move at this
time. When plaintiff is served with appropriate discovery
requests, plaintiff will set forth why plaintiff has alleged that
there are deceptive representations in the letter." (Pl's Mem. at
This statement is not enough to fend off summary judgment. The
President of Fidelity, Gary Goolsby, states in an affidavit that
the challenged statement promising Pujol that paying 80% of his
debt would settle his account was true, and that if Pujol had
made such a payment, his account would have been closed. Thus,
there was no deception. Moreover, under the "least sophisticated
consumer" standard, the Letter's language is sufficiently clear
and straightforward to convey that promise. Pujol cannot force
Fidelity to trial by saying there was some deception he will
disclose only if asked in discovery.
It is true that a party may avoid summary judgment by a proper
showing that it needs discovery to demonstrate the existence of
fact issues requiring trial. "[A] party resisting summary
judgment on the ground that it needs discovery in order to defeat
the motion must submit an affidavit showing (1) what facts are
sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a
genuine issue of material fact, (3) what effort affiant has made
to obtain them, and (4) why the affiant was unsuccessful in those
efforts." Miller v. Wolpoff & Abramson L.L.P., 321 F.3d 292,
303 (2d Cir. 2003) (quotation marks and citation omitted,
brackets in original). "Fed.R.Civ.P. 56(f) provides, as
interpreted by court opinions, that when a party facing an
adversary's motion for summary judgment reasonably advises the
court that it needs discovery to be able to present facts needed
to defend the motion, the court should defer decision of the
motion until the party has had the opportunity to take discovery
and rebut the motion." Id. (quotation marks and citation
omitted);*fn5 Littlejohn v. Henderson, No. 01-CV-2772
(JG), 2003 WL 21738608, at *3 (E.D.N.Y. June 19, 2003) (same);
Amaker v. Haponik, No. 98 Civ. 2663 (JGK), 2002 WL 523385, at
*7 (S.D.N.Y. Mar. 29, 2002) (same).
However, Pujol has neither contradicted Goolsby's testimony
that the statement at issue was true, nor requested, in a
Rule 56(f) affidavit or otherwise, discovery to challenge that
statement. Instead, Pujol has stated that discovery by the
defendant is necessary to elucidate Pujol's claim. This argument
is entirely unpersuasive. Where a defendant has properly asserted
that its challenged representation was true, the plaintiff must
present evidence upon which a jury could conclude otherwise.
Pujol has failed to do so, and thus summary judgment is
appropriate on this issue.*fn6 2. False Representation that Letter is From an Attorney:
Section 1692e(3) prohibits "[t]he false representation or
implication that any individual is an attorney or that any
communication is from an attorney." 15 U.S.C. § 1692e(3).
Generally, when an attorney signs a letter, that attorney is
creating the impression on the least sophisticated consumer that
the attorney had "some degree . . . of involvement" in that
consumer's case, Miller, 321 F.3d at 301, "at least in the
absence of language to the contrary," Clomon, 988 F.2d at 1321.
Pujol charges that the Letter violates this provision because it
gives the false representation that Jackson, an attorney, had
reviewed Pujol's file when, in fact, he was not personally
involved in Pujol's case. I disagree.
The controlling case in our circuit in this area of law is
Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). In Clomon,
the Second Circuit held that,
the use of an attorney's signature on a collection
letter implies that the letter is "from" the attorney
who signed it; it implies, in other words, that the
attorney directly controlled or supervised the
process through which the letter was sent. . . .
[T]he use of an attorney's signature implies at
least in the absence of language to the contrary
that the attorney signing the letter formed an
opinion about how to manage the case of the debtor to
whom the letter was sent.
Id. at 1321 (emphasis supplied); see also Avila v. Rubin,
84 F.3d 222
, 228 (7th Cir. 1996) ("Clomon establishes that an
attorney sending dunning letters must be directly and personally
involved in the mailing of the letters in order to comply with
the strictures of FDCPA. This may include reviewing the file of
individual debtors to determine if and when a letter should be
sent or approving the sending of letters based on the
recommendations of others.") Clomon involved a computerized mass mailing system in which
the creditor provided account information that was fed into the
collection agency's computer, which automatically inserted the
debtor's name, address, account number, and balance due
information into boilerplate letters. The collection agency
maintained a program for assessing the reliability of its
computer data, but no agency employee reviewed the file of an
individual debtor. The Second Circuit explained that,
This impression [from the attorney's signature] was
false and misleading because in fact [the attorney]
did not review each debtor's file; he did not
determine when particular letters should be sent; he
did not approve the sending of particular letters
based upon the recommendations of others; and he did
not see particular letters before they were sent. . . .
In short, the fact that [the attorney] played
virtually no day-to-day role in the debt collection
process supports the conclusion that the collection
letters were not "from" [the attorney] in any
meaningful sense of that word.
Clomon, 988 F.2d at 1320. The Clomon Court acknowledged that
it was mindful of the economic necessity of mass mailing in the
debt collection industry, but made it clear that no misleading
communications could be tolerated.
Since Clomon, courts in this circuit have denied summary
judgment where the attorney signed the dunning letter but it was
unclear how much involvement (if any) the attorney had in
reviewing the debtor's file and there was no statement in the
letter disavowing personal involvement. Conversely, courts have
granted summary judgment for debt collectors where the requisite
personal involvement was clear, and for the plaintiffs where the
lack of personal involvement was clear.*fn7 Here, unlike the disputed letters in most cases, the Letter
would not lead the least sophisticated consumer to believe that
Jackson, the signing attorney, had individually reviewed his or
her file and made a judgment about how to collect the debt.
Indeed, it states the opposite: "I have not, nor will I, review
each detail of your account status, unless you so request."
Jackson's affidavit confirms that the Letter accurately states
that although he was communicating the creditor's desire to
settle the debt, he did not make the decision for the creditor or
review the debtor's file.*fn8
Concededly, the Letter would have been clearer if the word
"the" was substituted for "each," so that the Letter read: "I
have not, nor will I, review the details of your account
status." But I do not believe the least sophisticated consumer
could read Jackson's letter and reasonably conclude that he had
reviewed some of the details in the file, but not others.
Furthermore, Clomon recognized that an attorney's signature
does not necessarily mean that the attorney was involved in the
debtor's case: "The use of an attorney's signature implies at
least in the absence of language to the contrary that the attorney
signing the letter formed an opinion about how to manage the
case. . . .". Clomon, 988 F.2d at 1321 (emphasis supplied).
Jackson's language here was sufficiently to the contrary, and I
therefore hold that the Letter is not actionable under the FDCPA.
For the foregoing reasons, the defendant's motion for summary
judgment is granted in its entirety. The Clerk of Court is
directed to enter judgment for the defendant and to close the