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Shari Kavalin, An Individual v. Global Credit & Collection Corporation

March 30, 2011

SHARI KAVALIN, AN INDIVIDUAL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
GLOBAL CREDIT & COLLECTION CORPORATION, A DELAWARE CORPORATION, AND JOHN AND JANE DOES NUMBERS 1 THROUGH 25, BEING FICTITIOUS NAMES OF UNIDENTIFIED PERSONS WHO CONTROL THE POLICIES AND PRACTICES INVOKED BY GLOBAL CREDIT & COLLECTION CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiff Shari Kavalin brings this putative class action against defendant Global Credit and Collection Corporation ("Global Credit") asserting claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. ("FCCPA"). Global Credit moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's claims brought under certain provisions of the FDCPA, and to dismiss plaintiff's FCCPA claims in their entirety. For the reasons that follow, Global Credit's motion is granted in part and denied in part.

BACKGROUND

Plaintiff is a resident of Broward County, Florida. Global Credit is a debt collection agency with its principal place of business in Williamsville, New York. Plaintiff alleges that, beginning in early October 2009, Global Credit sent her a collection letter, and left "scores" of voice messages on her cell phone, in connection with a delinquent consumer account at Capital One Bank. "By way of example," plaintiff claims that Global Credit left the following voice messages:

Good afternoon, my name is Andrew Metcalf. I am the Senior supervisor at Global. Over the past week, we have sent correspondence to the address we have on file for you. Due to the Privacy Act, I am unable to disclose the name of the person that I am trying to reach; however, it is a time-sensitive matter and requires your immediate attention. My staff are available to help analyze your situation and provide solutions, which meet your needs. We are available to help answer any questions or concerns you may have until 9:00 p.m. this evening. Please give us a call at 1-877-295-9638, or press one now to speak with a qualified agent. To speak with me directly, you may call me at toll-free 1-877- 295-9638 and ask my staff to transfer you to extension 873.

Item 10, ¶ 43 (message left on October 8, 2009).

Good afternoon, my name is Andrew Metcalf, I'm trying to get in contact with you in regards to an important matter that's just reached our office. Our client has required immediate attention from you for some time now. You may reach us directly at 1-877-295-9638. Due to the importance of this matter, our office will be open this evening until 9:00 p.m. for your immediate attention. You may reach us at, toll-free, 1-877-295-9638.

Id., ¶ 46 (messages left on October 19 and 22, 2009).

Hello, good day; my name is "Arion." I'm calling with regards to an important business matter. It would be in your best interest to get this meeting [sic] resolved as soon as possible. We have 48 hours to resolve this matter. So you need to return this call or forfeit options available. To stop further phone calls, and to resolve this issue, please contact us on 1-877-295-9638. Thank you.

Id., ¶ 48 (message left on October 24, 2009).*fn1

Plaintiff claims that these messages fail to disclose the caller's identity, contain materially false, deceptive and misleading statements that create a false sense of urgency, and otherwise amount to "conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt in violation of 15 U.S.C. § 1692d" and several other provisions of the FDCPA. Item 10, ¶ 133. She also claims that these messages are actionable under § 559.72 of the FCCPA, specifically subsections (7) (prohibiting collectors of consumer debt from "willfully" engaging in "conduct which can reasonably be expected to abuse or harass the debtor"), and (8) (prohibiting the use of profane, obscene, vulgar, or willfully abusive language in communicating debtors). See id. at ¶ 136.

Plaintiff further alleges in her amended complaint that ,"[i]n or about the middle or latter part of October 2009" (id., ¶ 79), she received a letter from Global Credit dated October 2, 2009, which stated in part:

Your delinquent account now meets Capital One Bank (USA), N.A.'s guidelines for legal action if it charges off.

Your account has been placed with Global Credit & Collection Corp., a collection agency. This is an attempt to collect a debt. Any information obtained will be used for that purpose.

Capital One . . . has not yet made a decision to file a lawsuit, there is still time for you to work with us in resolving this matter.

If we cannot get this matter resolved soon and your account charges off, Capital One . . . may be forced to take legal action. This could result in a judgment against you. If Capital One . . . obtains a judgment against you, they can take whatever actions they deem advisable to enforce it.

Item 10, Ex. A. Plaintiff claims that these "written communications," like the cell phone messages, contain false, deceptive and misleading representations amounting to conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, in violation of several provisions of the FDCPA (id., ¶ 134), as well as § 559.72, subsections (7) and (8), of the FCCPA (see id. at ¶ 137).

Global Credit moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the following claims:

1. Plaintiff's claim that the October 2, 2009 collection letter violated ...


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