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PUJOL v. UNIVERSAL FIDELITY CORPORATION

June 9, 2004.

ALFONSO PUJOL, Plaintiff,
v.
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 claims. BACKGROUND

  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THE FUNDS OF $349.70 MUST BE RECEIVED IN THIS OFFICE WITHIN (10) TEN DAYS OF THE RECEIPT OF THIS LETTER OR THE OFFER IS RESCINDED.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 this matter.
DISCUSSION
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 dismiss).

  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 appropriate.*fn4

  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 harassing." Id.

  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 6.)

  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 ...


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