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ACHEAMPONGTIEKU v. ALLIED INTERSTATE

August 29, 2005.

MICHAEL ACHEAMPONGTIEKU, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
ALLIED INTERSTATE, INC., Defendant.



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.

OPINION & ORDER

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.

I. BACKGROUND

  A. Factual Background

  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 Despite 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.)

  B. Procedural History

  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.)

  II. STANDARD OF REVIEW

  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).

  III. DISCUSSION

  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 ...

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