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Soffer v. Nationwide Recovery Systems

April 18, 2007

JOSEPH SOFFER, PLAINTIFF,
v.
NATIONWIDE RECOVERY SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Townes, United States District Judge*fn1

MEMORANDUM and ORDER

Plaintiff, Joseph Soffer ("Plaintiff"), brings this action against defendant, Nationwide Recovery Systems, Inc. ("Nationwide" or "Defendant"), pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., alleging that a debt collection letter sent by Defendant to Plaintiff was deceptive in that a settlement offer made in the letter contradicted information about Plaintiff's rights contained in a validation notice. Nationwide now moves to dismiss Plaintiff's complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons discussed below, Defendant's motion is granted.

BACKGROUND

The following facts, which are largely if not completely undisputed, are taken from Plaintiff's complaint and the debt collection letter attached thereto. On or about January 4, 2006, Nationwide sent a one-page, double-sided form letter to Plaintiff (the "Letter"), in an attempt to collect a $68.85 debt purportedly owed by Plaintiff to Acceris Communications, Inc. The front of the Letter states in pertinent part:

This is a formal demand for payment. Your account has been assigned to this agency from Acceris Communications Inc. It is to your advantage to cooperate.

Acceris Communications Inc has authorized Nationwide Recovery Systems to offer you the opportunity to settle your account for a lump sum payment of 34.43. To take advantage of this offer, payment of 34.43 must be received by Nationwide Recovery Systems no later than 02-08-06.

At the end of the letter is a notice which appeared in boldface type and reads, "This communication is an attempt to collect a debt. Any information obtained shall be used for that purpose. Notice: See reverse side for important information."

The reverse side of the Letter sets forth the debtors' rights, as required under the FDCPA, 15 U.S.C. § 1692g (a). A heading which reads, "Important Information," appears at the top of the page in capital letters and boldface type. The information underneath the heading states:

This is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless you notify this office within thirty days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you notify this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

The rest of the reverse side of the letter contains certain State-specific information about a consumer's rights during the debt collection process.

Within a month of receiving the Letter, Plaintiff commenced this action. In his complaint, Plaintiff alleges that the Letter violates §§ 1692e and 1692g because the Letter is deceptive and contradicts the Plaintiff's right to dispute the debt. See Complaint at ¶ 11. However, Plaintiff's Complaint does not identify the specific language in the Letter that forms the basis for this allegation.

Instead of answering the Complaint, Defendant now moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the settlement offer does not overshadow or contradict information in the Letter's validation notice and that the Complaint does not allege any false representations or deceptive practices. In response, Plaintiff explains that the settlement offer on the front overshadows or contradicts the validation notice on the back by creating confusion about Plaintiff's right to dispute the debt. Plaintiff also argues that the Letter is ambiguous as to whether the settlement offer remained open past the thirty-day debt-dispute period and creates confusion about when the thirty-day debt-validation period began and ended. In reply, Defendant argues that a settlement offer made in a debt collection letter does not overshadow or contradict a validation notice contained in the same letter and that the issue about whether the settlement offer expired after the thirty-day debt dispute period lapsed is irrelevant.

DISCUSSION

A complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts that entitles him to relief. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001); Connolly v. McCall, 254 F.3d 36, 40 (2d Cir. 2001). The plaintiff's factual allegations must be accepted as true and all inferences must be drawn from those allegations in the light most favorable to the plaintiff. Connolly, 254 F.3d at 40. "To survive a motion to dismiss, however, the complaint must allege facts which, ...


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