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Harry v. Pentagroup Financial

March 14, 2007


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Before the court is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 by defendant Pentagroup Financial, LLC ("Pentagroup") with respect to plaintiff Andra Harry's ("plaintiff") claim that Pentagroup violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("the FDCPA"). For the following reasons, Pentagroup's motion for summary judgment is granted.


Pentagroup, a collection agency, was engaged to collect an alleged consumer debt of $135.91 owed by plaintiff to Cavalry Portfolio Services, Corp. Affidavit of Arthur Sanders in Support of Defendant's Motion for Summary Judgment ("Sanders Aff.") Exhibit A; Affidavit of James Thorpe in Support of Defendant's Motion for Summary Judgment ("Thorpe Aff.") ¶ 3; Complaint ¶ 9. On May 21, 2004, Pentagroup issued a letter to plaintiff attempting to collect the debt. Sanders Aff. Exhibit A. The letter read, in part, "[i]f payment is not made in a timely manner, further collection activity may be instituted. Your prompt attention to this matter is appreciated." Id. On September 15, 2004, plaintiff filed a putative class action alleging that the aforementioned language contradicted and overshadowed the "validation notice" required by 15 U.S.C. § 1692(g). The validation notice requires that the debt collector include language advising debtors that they have the right to dispute and/or verify the debt within thirty days of receiving the collection letter. Complaint ¶ 13. Defendant, for its part, claims that "[t]he letter at issue contains no language that contradicts or overshadows the validation notice provided in the letter in compliance with 15 U.S.C. § 1692(g)." Sanders Aff. ¶ 6; See also Thorpe Aff. ¶ 3.


I. Standard of Review

Summary judgment is appropriate where "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a summary judgment motion, the court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

Pentagroup's Local Rule 56.1 Statement asserts that it is undisputed that "[t]he letters issued to a plaintiff is in complete compliance with the Fair Debt Collection Practices Act." Despite being represented by able counsel, plaintiffs' opposition to Pentagroup's motion does not include an affidavit from a plaintiff, nor a Local Rule 56.1 Counter-Statement of Undisputed Facts contesting this statement. Thus, pursuant to this court's local rules, the statement is deemed admitted. See Local R. 56.1(c) ("[a]ll's material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement" of the nonmoving party). However, whether or not the language of a collection letter violates the FDPCA is an issue of law to be decided by the court, and therefore plaintiffs' failure to contest it is not fatal to her opposition.*fn1 See Building Service 32B-J Health, Pension and Annuity Fund V. Vanderveer Estates Holding, LLC, 121 F. Supp.2d 750, 755 n1 (S.D.N.Y. 2000).

II. Alleged 15 U.S.C. § 1692(g) Violations

The FDCPA is a strict liability statute and "a consumer need not show intentional conduct by the debt collector to be entitled to damages." Russell V. Equifax, 74 F.3d 30, 33 (2d Cir. 1996). "The most widely accepted test for determining whether a collection letter violates the FDCPA is an objective standard based on the 'least-sophisticated consumer.'" Colmon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). "The basic purpose of the least-sophisticated consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Id.

To accomplish its goals, the FDCPA requires certain language commonly referred to as a "validation notice" to be included in a debt collection letter.*fn2 The purpose of the validation notice is to provide the consumer with information necessary to challenge the debt allegedly owed before making payment to an independent collection agency. See § 1692(g)(a). A debt collector violates § 1692(g) of the FDCPA if it sends the debtor a collection letter that "overshadows or contradicts" or, in some cases, creates confusion as to the consumer's right to dispute the debt. DeSantis v. Computer Credit Inc., 269 F.3d 159, 161 (2d Cir. 2001) ("[e]ven if a debt collector conveys the required information, the collector nonetheless violates the Act if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty."); Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 660-61 (S.D.N.Y. 2006).

Here, plaintiff contends that Pentagroup's collection letter overshadowed the validation notice by stating "if payment is not made in a timely manner, further collection activity may be instituted." Plaintiff's Memorandum 4. Specifically, plaintiff contends that this statement can be interpreted to mean that plaintiff must pay the debt in full "in a timely manner" overshadowing plaintiff's right to dispute the debt within the statutory period. Moreover, the plaintiff contends that the statement "your prompt attention to this matter is appreciated" compounds the violation because the least savvy consumer would assume this means the debt must be paid before the period to challenge the debt has expired. Plaintiff's Memorandum 4.

Whether the particular wording of a letter violates the FDCPA is an issue of law that can be decided by a court on a motion for summary judgment. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (finding as a matter of law that the defendant's collection letters were not false, deceptive or misleading to the least sophisticated consumer); Berger v. Suburban Credit Corp., 04 CV 4006, 2006 WL 2570915, *3 (E.D.N.Y. Sept. 5, 2006) ("the Second Circuit has indicated that the determination of how the least sophisticated consumer would view language in a defendant's collection letter is a question of law because the standard is an objective one.").

The court finds that the language in the letter does not overshadow the validation notice and does not violate the FDCPA. In Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.1998), the Second Circuit found that the debt collector's request for "immediate" payment did not, standing alone, violate the FDCPA. Rather, the court concluded that the debt collector's "violation of the Act consisted of its decision to ask for immediate payment without also explaining that its demand did not override the consumer's rights under Section 1692(g) to seek validation of the debt." Id. at 86. Here, the defendant eschewed from making a demand for immediate payment and only requests "timely payment." Sanders Aff. Exhibit A. Plaintiff makes a semantic argument that ...

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