United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
Donnelly United States District Judge.
plaintiff filed this lawsuit on November 30, 2016 seeking
monetary damages, in connection with a March 9, 2016
collection letter related to a default judgment against the
plaintiff. The plaintiff claims that the defendant violated
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692 et. seq., because the letter was
misleading and deceptive. (ECF No. 5.) After the plaintiff
submitted the March 9, 2016 letter at issue, I published a
detailed order requiring the plaintiff to show cause why his
complaint should not be dismissed in its entirety for failing
to state a claim upon which relief could be granted. The
plaintiff responded to this order on December 15, 2017. I
heard oral argument on February 15, 2017. Now, for the
reasons set out below, the plaintiff’s complaint is
dismissed in its entirety.
plaintiff had an outstanding debt of nearly $36,000. The
defendant sent the plaintiff a letter advising him that the
defendant had been retained to collect this debt. While the
plaintiff claimed that the letter was deceptive and
misleading, he neglected to attach it to his complaint.
However, because it was incorporated into the complaint by
reference, I instructed the plaintiff to file the letter
electronically. (Nov. 30, 2016 Docket Order.) The letter
reads in relevant part:
Judgment Dated: 10/20/2008
Dear Mr./Ms. Delfonce:
Please be advised that Eltman Law, P.C. has been retained by
LVNV Funding LLC, . . . for collection of this Debt.
. . . [T]his letter should not be taken as . . . a threat of
legal action. However, if you fail to contact this office,
our client may consider the availability of additional
remedies to recover the balance due.
Unless you notify this office within thirty (30) 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, within thirty (30) days after your receipt
of this notice, you notify us in writing that the debt, or
any portion thereof, is disputed, we will obtain verification
of the debt or a copy of any judgment, and we will mail to
you a copy of such verification or judgment. If you request
of this office in writing within thirty (30) days after
receiving this letter, this office will provide you with the
name and address of the original creditor, if different from
the current creditor.
As of the date of this letter you owe a balance of
$35,856.24. Because of interest that may vary from day to
day, the amount due on the day you pay may be greater. Hence,
if you pay the amount shown above, an adjustment may be
necessary after we receive your check, in which event we will
inform you before your check is deposited.
(March 10, 2016 Letter (ECF No. 5).) The “Account
Summary” inset provides that the original creditor was
Citibank USA, N.A., and that the creditor to whom the
plaintiff owes the debt is LVNV Funding LLC. The Account
Summary lists the “Eltman File #” and represents
that $35,856.24 is due. (March 10, 2016 Letter.)
December 1, 2016, I issued a detailed order to show cause,
which identified the deficiencies in the complaint for each
provision of the FDCPA listed in the pleading, and instructed
the plaintiff to show cause why the action should not be
dismissed. (Dec. 1, 2016 Order to Show Cause (ECF No. 6).)
The plaintiff responded on December 15, 2016. (ECF No. 7.) I
heard oral argument on February 15, 2017.
plaintiff concedes, as he must, that the defendant’s
letter contains the notices required by 15 U.S.C. §
1692g. He also acknowledges that the letter cautions that it
is “not a threat of legal action.” Nevertheless,
the plaintiff argues that this information is
“overshadowed” by a single line at the top of the
page: “Judgement Dated: 10/20/2008.” The word
“judgment,” says the plaintiff, could delude the
“least sophisticated consumer” into thinking that
a “legal action” exists, despite the explicit
statement to the contrary.
reasons stated on the record and discussed below, the
plaintiff’s complaint is dismissed.
plaintiff contends that the defendant violated the
“various provisions of the FDCPA, including but not
limited to 15 U.S.C. §§ 1692g, 1692e, 1692e(2),
1692e(5), 1692e(10), 1692f, and 1692f(1).” (Compl.
¶ 23.) Each of the provisions identified specifically ...