The opinion of the court was delivered by: HAROLD BAER, JR. District Judge[fn*] [fn*] Paul-Philippe L. Reyes, a summer 2005 intern in my Chambers, and currently a second year law student at Brooklyn Law School, provided substantial assistance in the research of this Opinion.
On October 25, 2004, Plaintiff, Michael Acheampongtieku, filed
the instant action individually, and on behalf of others
similarly situated, against Defendant, Allied Interstate, Inc.
("Allied"), a debt collection agency, for violation of the Fair
Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et
seq. Plaintiff seeks: (1) a declaratory judgment requiring
Defendant to make corrective disclosures in its letters to
alleged debtors; and, (2) statutory damages. (Compl. ¶ 23.) Here,
Allied moves for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the following reasons,
Defendant's motion for summary judgment is GRANTED.
The essential facts that give rise to this action are not in
dispute. Plaintiff is a resident of New York City, New York.
(Compl. ¶ 4.) Allied is a debt collection agency with its
principal place of business in Minnesota. (Compl. ¶ 5; Ans. ¶ 4.)
In an attempt to collect debts alleged to be owed to Providian
Financial Corporation ("Providian"), the Defendant, between
October 25, 2003 and November 8, 2004, mailed 170,090 similar
letters to Providian debtors. (Pl. Memo. in Op. to Def. Mot. for
Summ. J., Ex. B, Resp. to Interrogs., at ¶ 1.) While letters, or
a draft thereof, was checked for errors prior to being sent, the
complained of language remained. (Aff. of Jeffrey Swedberg, Vice
Pres. Operations of Allied, at ¶ 7.) The parties do not dispute
that Allied maintained specific procedures "to prevent errors in the letters it sent to Plaintiff and others from whom
it sought to collect a debt and to ensure compliance with the
FDCPA." Id. These procedures included:
(1) a client of Allied requested a proposed letter be
used; (2) the proposed letter was reviewed and
revised to ensure compliance with applicable law; (3)
the proposed letter was sent to an outside letter
vendor so it could be formatted and prepared; (4) the
outside vendor formatted the letter and returned it
to Allied for inspection; and (5) the letter was
entered into production and used.
Id. Allied acknowledges that after the letters were sent into
production they were not rechecked for accuracy. Id.
On July 13, 2004, Plaintiff received one of these letters from
Allied which sought to collect a debt Plaintiff owed to
Providian. (Aff. Swedberg, at ¶ 5.) The Collection Letter reads
in pertinent part:
SPECIAL NOTICE AND PAYMENT DEMAND . . . Your account
is currently scheduled to be listed with a national
credit bureau. To avoid reporting of your delinquent
Providian account to the credit bureau, contact us
for acceptable arrangements.
(Compl. Ex. A, Ltr. dated Jul. 13, 2004, from Allied to Michael
Acheampongtieku) (herein, "Collection Letter").*fn1
the language of the letter indicating that delinquent debtors may be reported, Allied never informed any credit bureau of
Plaintiff's debt. (Aff. Swedberg, at ¶¶ 6-8.)
However, according to Plaintiff, while Allied did not report
Plaintiff's debt to any credit bureau, Providian, unbeknownst to
Allied until the filing of this action, reported Plaintiff's debt
to three credit bureaus in violation of Section 1692e of the
FDCPA. (Compl. ¶ 17; Aff. Swedberg, at ¶ 11) (see also Pl.
Mem. of Law in Op. to Summ. J., at 6 (". . . as there was no
reporting done by the defendant nor did the defendant intend on
reporting any consumer to a credit reporting agency.")). In
particular, Plaintiff alleges that his "Providian account status
was listed with (a) Experian as a Charge-off, with (b) Equifax as
a bad debt placed for collection and with (c) Trans Union as
charged off as bad debt." (Compl. ¶ 17.) Plaintiff alleges, the
Collection Letter was false, deceptive, and prohibited Plaintiff
from disputing the validity of the debt prior to it being
reported to a credit bureau. Id. In addition, Plaintiff also
claims that the language of the Collection Letter overshadows,
confuses, and divests the consumer of his right to meaningfully
dispute the debt in contravention of 15 U.S.C. §§ 1692e and
1692g. Id. Thus, Plaintiff seeks both a declaratory judgment
requiring Allied to make corrective disclosures in its collection
letters and statutory damages. (Compl. ¶ 23.)
On October 24, 2004, Plaintiff filed the instant action for
violation of the FDCPA. (Compl. ¶ 17.) On June 30, 2005, Allied
moved for summary judgment, and argued that (1) the Collection
Letter does not obfuscate Plaintiff's rights under the FDCPA, and
(2) even if the Collection Letter violates the FDCPA, Allied is
entitled to protection under 15 U.S.C. § 1692k(c). (Def. Mem. of
Law in Supp. of Def. Mot. for Summ. J., at 1-3) (Dckt. 10.)
A court will not grant a motion for summary judgment unless it
determines that there is no genuine issue of material fact and
the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 250 (1986). The party opposing summary judgment
"may not rest upon the mere allegations or denials of the adverse
party's pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial." Fed.R. Cir. P. 56(e).
In determining whether there is a genuine issue of material fact,
the Court must resolve all ambiguities, and draw all inferences,
against the moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks
Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not
the court's role to resolve issues of fact; rather, the court may
only determine whether there are issues of fact to be tried.
Donohue, 834 F.2d at 58 (citations omitted).
The purpose of FDCPA is "to protect consumers from a host of
unfair, harassing, and deceptive debt collection practices
without imposing unnecessary restrictions on ethical debt
collectors." Shevach v. Am. Fitness Franchise Corp., No. 98
Civ. 2938, 2001 WL 274121, at *2 (S.D.N.Y. Mar. 19, 2001)
(citing to S. Rep. No. 382, 95th Cong., 1st Sess. 1-2). The
FDCPA delineates a laundry list of possible violations designed
to prohibit "false, deceptive or misleading representation or
means in connection with the collection of any debt."
15 U.S.C. § 1692e; see also Russell v. Equifax A.R.S., 74 F.3d 30, 33
(2d Cir. 1996). In particular, Section 1692e prohibits:
(5) The threat to take any action that cannot legally
be taken or that is not intended to be taken; . . .
(8) Communicating or threatening to communicate to
any person credit information which is known or which
should be known to be false, including the failure to
communicate that a disputed debt is disputed; . . .
and (10) The use of any false representation or
deceptive means to collect or attempt to collect any
debt or to obtain information ...