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Shapiro v. Law Offices of Cohen & Slamowitz

March 28, 2007


The opinion of the court was delivered by: Conner, Senior D.J.


Plaintiff Samuel Shapiro brings this action pursuant to the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692, et seq., against defendant Law Offices of Cohen & Slamowitz, LLP. Plaintiff alleges that defendant violated the FDCPA when it mailed to plaintiff's address a letter and summons soliciting payment of a debt owed by Shmuel Shaprio, a person unrelated to plaintiff but possessing a similar name, despite having learned through plaintiff's counsel that plaintiff was not the actual debtor. Specifically, plaintiff contends that, in sending the aforementioned mailing, defendant: (1) engaged in false or misleading conduct in violation of 15 U.S.C. § 1692e(2) and (10);*fn1 and (2) contacted plaintiff directly despite having knowledge that plaintiff was represented by counsel in violation of 15 U.S.C. § 1692c(a)(2).*fn2 Following the filing of defendant's Answer, which admits the factual allegations contained in plaintiff's Complaint, plaintiff moved for judgment on the pleadings pursuant to FED. R. CIV. P 12(c). Defendant objects, contending that the collection letter: (1) did not violate the FDCPA because, read objectively in light of the circumstances, it was not false or deceptive; and (2) although sent after plaintiff retained counsel, was mailed to Shaprio, rather than plaintiff, and therefore did not violate § 1692c(a)(2). For the reasons that follow, plaintiff's motion is denied.


The following relevant facts are undisputed by the parties. Defendant, a debt collector within the meaning of the FDCPA,*fn3 filed suit against Shmuel Shaprio in New York State Supreme Court, Rockland County, on December 6, 2005 in an attempt to collect a debt owed to its client, Colorado Capital Investments, Inc. (Complt. ¶ 9.) The action listed as Shmuel Shaprio's address 4 Joan Lane, Monsey, New York 10952, which is plaintiff's home address. (Id.., Exs. A, E.) The summons was mistakenly served on plaintiff in early 2006. (Id. ¶ 10.) On March 16, 2006, defendant sent plaintiff a letter requesting payment of the debt, as well as indicating the original and current creditors. (Id. ¶ 9.) Upon reading the letter, plaintiff's wife contacted defendant by telephone in an attempt to explain that a misunderstanding had occurred, as plaintiff did not owe the debt in question. (Id. ¶ 14.) Her efforts, however, were unsuccessful, and plaintiff was forced to retain counsel in order to resolve the matter. (Id. ¶ 15.)

Plaintiff's counsel, by letter and facsimile dated March 29, 2006, again informed defendant of the misunderstanding and instructed defendant to cease communication with plaintiff. (Id. ¶¶ 15- 18.) During conversations with defendant's agent, plaintiff's counsel instructed defendant to either discontinue the state court action or correct the address listed for the defendant, Shmuel Shaprio. (Id., Ex. C.) The following day, plaintiff's counsel contacted defendant by telephone and again informed it that plaintiff was not the obligor on the debt that defendant was attempting to collect. (Id. ¶¶ 16-19.) During this conversation, it became clear that plaintiff's social security number differed from that of the actual debtor, Shmuel Shaprio, and defendant's representative stated that all efforts to collect the debt would cease immediately. (Id. ¶¶ 17-18.) Plaintiff's counsel sent defendant a facsimile memorializing the conversation. (Id. ¶ 19.) Nevertheless, on April 11, 2006, defendant mailed to 4 Joan Lane a second collection letter and an additional copy of the summons, both of which were addressed to Shmuel Shaprio. (Id. ¶¶ 19-21.) This litigation ensued.


I. Legal Standard

In ruling on a motion under FED. R. CIV. P. 12(c), the Court employs the standard applicable to a motion made pursuant to FED. R. CIV. P. 12(b)(6). See Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987). "Accepting the non-moving party's allegations as true and viewing the facts in the light most favorable to that party, judgment on the pleadings or dismissal for failure to state a claim should be granted if the moving party is entitled to judgment as a matter of law." Richards v. Select Ins. Co., 40 F. Supp. 2d 163, 165 (S.D.N.Y. 1999) (internal quotation marks omitted).

II. Whether Defendant's Actions Violated the FDCPA

The FDCPA was created in an attempt to stop abusive and deceptive practices by third-party debt collectors and to insure that those who refrain from such practices are not competitively disadvantaged. See 15 U.S.C.§ 1692(e). It incorporates congressional findings that debt collection abuses, including late night phone calls, the use of profane language and threats of violence, are widespread and pervasive. Id. § 1696; see also Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996). The FDCPA expressly prohibits certain practices deemed to be particularly egregious, including the three aforementioned activities. See 15 U.S.C. §§ 1692d(1)-(6). It also contains a "catch-all" provision prohibiting any debt collection practice that is "false, deceptive, or misleading." 15 U.S.C. § 1692e(10); see also Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993) ("[T]he use of any false, deceptive, or misleading representation in a collection letter violates § 1692e--regardless of whether the representation in question violates a particular subsection of that provision.").

When evaluating the deceptiveness of collection material, we must consider how it would be perceived by the "least sophisticated consumer." Clomon, 988 F.2d at 1318 ("The most widely accepted test for determining whether a collection letter violates § 1692e is an objective standard based on the 'least sophisticated consumer.'"). Generally, collection notices that are found to be deceptive contain confusing or contradictory language about the consumer's rights. Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998) (quoting Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991)). Notices that fail to include certain statutorily-mandated consumer protection provisions are also prohibited. DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001); see also 15 U.S.C. § 1692g(a)(4) (requiring debt collector to "send the consumer a written notice containing . . . a statement that if the consumer notifies the debt collector in writing within [thirty days after receipt of the notice] that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.").

Of course, courts must balance the need to protect consumers against the need to shelter debt collectors "against liability for unreasonable misinterpretations of collection notices." Clomon, 988 F.2d at 1319. Accordingly, the FDCPA "does not extend to every bizarre or idiosyncratic interpretation" of a collection notice. Id. (internal quotation marks omitted; citations omitted). For example, notices where the pertinent information is on the rear, as opposed to the front side, of a collection letter do not violate the FDCPA. See McStay v. I.C. Sys., Inc., 308 F.3d 188, 190 (2d Cir. 2002). The standard presumes the consumer at least "possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Clomon, 988 F.2d at 1319.

We begin with plaintiff's claims pursuant to 15 U.S.C. § 1692e(2) and (10), namely that defendant violated the FDCPA by using false or deceptive representations in the collection of a debt. See supra, n.1. Under the circumstances, we are unwilling to conclude, as a matter of law, that defendant's misaddressing of the collection letters constituted false or deceptive conduct. Indeed plaintiff does not argue that the first letter was deceptive. The pleadings indicate that the sending of the initial letter to plaintiff was the result of a clerical mistake on the part of defendant, which believed, and apparently still believes, that Shaprio resides at 4 Joan Lane. As the FDCPA's verification procedures demonstrate, see 15 U.S.C. § 1692g(a)(4) ("[I]f the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector . . . ."), "[t]he statute wisely anticipates that not all debts can or will be verified. After all, in the real world, creditors and debt collectors make mistakes, and sometimes initiate collection activities against persons who do not owe a debt." Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997).

Following plaintiff's prompt recognition that the letter was erroneously sent to him, he notified defendant, which unequivocally informed plaintiff that Shaprio was the actual debtor. Taking into account plaintiff and his counsel's extensive correspondence with defendant, we conclude that a genuine issue of fact remains regarding the deceptiveness of the April 11, 2006 letter. In light of defendant's explicit assurance to plaintiff's counsel that plaintiff was not the actual debtor, it appears doubtful ...

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