United States District Court, N.D. New York
DECISION & ORDER
J. McAVOY, Senior United States District Judge.
the Court is Plaintiff's motion pursuant to Fed.R.Civ.P.
55 against Defendant National Credit Adjusters, LLC in this
action which asserts violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq. Dkt. #
11. Plaintiff seeks a judgment as to liability, damages,
costs and attorney's fees. Id. For the reasons
that follow, Plaintiff's motion is granted.
following facts are supported by the entries on the docket,
the allegations contained in the Complaint, and the
assertions made in Plaintiff's counsel's Declaration
in support of the motion [dkt. # 11-2]. These facts are
deemed established for purposes of this motion.
commenced this action on October 6, 2016 seeking to recover
for violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq., (“FDCPA”).
A summons was issued as to Defendant on October 6, 2016. The
summons was returned executed on November 4, 2016, indicating
service had been completed on October 24, 2016 (Dkt. # 5).
Defendant's answer was due on November 14, 2016 (Dkt. #
5), but Defendant has failed to appear or answer. A
Clerk's certificate of default was requested on December
14, 2016 (Dkt. # 6) and issued December 14, 2016 (Dkt. # 7).
Plaintiff then moved pursuant to Fed.R.Civ.P. 55 seeking a
judgment as to liability, statutory damages, and costs and
attorney's fees (Dkt. # 11).
is an individual who is a citizen of the State of New York
and is a “consumer” as defined by 15 U.S.C.
§ 1692a(3). Defendant is an entity that uses an
instrumentality of interstate commerce or the mails in a
business the principal purpose of which is the collection of
debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another, and is therefore a “debt
collector” as defined by 15 U.S.C. § 1692a(6).
Plaintiff's alleged debt was primarily for personal,
family or household purposes and is therefore a
“debt” as defined by 15 U.S.C. § 1692a(5).
Sometime after the incurrence of the debt, but before the
initiation of this action, Plaintiff is alleged to have
fallen behind on payments allegedly owed on the alleged debt.
time known only to Defendant, Plaintiff's alleged debt
was assigned or otherwise transferred to Defendant for
collection. In its efforts to collect the alleged debt,
Defendant contacted Plaintiff by written correspondence.
Defendant's written correspondence dated January 29, 2016
and received by Plaintiff on February 4, 2016, is a
“communication” as defined by 15 U.S.C. §
1692a(2). This written correspondence stated that
Plaintiff's “current balance” was $431.41.
Compl. Ex. 1. The written correspondence did not disclose
whether the “current balance” could increase due
to additional interest or late fees. Id. Further,
the written correspondence indicated that if Plaintiff did
not dispute the balance, she could satisfy the debt by paying
$215.71 provided she contacted Defendant's account
manager by February 29, 2016 after which the offer became
null and void. Id.
U.S.C. § 1692e prohibits a debt collector from using any
false, deceptive, or misleading representation or means in
connection with the collection of any debt. A collection
letter is deceptive under 15 U.S.C. § 1692e if it can
reasonably be read by the least sophisticated consumer to
have two or more meanings, one of which is inaccurate. A
collection letter is also deceptive under 15 U.S.C. §
1692e if it is reasonably susceptible to an inaccurate
reading by the least sophisticated consumer.
U.S.C. § 1692e requires debt collectors, when they
notify consumers of their account balance, to disclose
whether the balance may increase due to interest and fees.
Avila v. Riexinger & Associates, LLC, 817 F.3d
72, 76 (2d Cir. 2016). As Plaintiff asserts, the least
sophisticated consumer could reasonably read Defendant's
written correspondence to mean that the “current
balance” was static, or that the “current
balance” was dynamic due to the continued accumulation
of interest and/or late fees.
U.S.C. § 1692g provides that “[w]ithin five days
after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall ...
send the consumer a written notice, ” known as a
validation notice. 15 U.S.C. § 1692g(a); see Russell
v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996). The
validation notice is required to contain certain information,
including “the amount of the debt, ” “the
name of the creditor to whom the debt is owed, ” and a
series of statements outlining the dispute procedures. 15
U.S.C. § 1692g(a); see also Hoo-Chong v.
CitiMortgage, Inc., 2017 WL 1232506, at *4 (E.D.N.Y.
Mar. 31, 2017). This provision states that “unless the
consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof,
the debt will be assumed valid by the debt collector.”
15 U.S.C. § 1692g(a)(3). “If the consumer disputes
the debt or requests the name and address of the original
creditor during the thirty-day ‘validation period,
' the debt collector must ‘cease collection of the
debt, or any disputed portion thereof' until the debt
collector verifies the debt or obtains the name and address
of the original creditor and ‘a copy of such
verification ... or name and address of the original
creditor, is mailed to the consumer by the debt
collector.'” Ellis v. Solomon & Solomon,
P.C., 591 F.3d 130, 134-35 (2d Cir. 2010)(quoting 15
U.S.C. § 1692g(b)).
period collection activities and communications must not
‘overshadow' or ‘contradict' the
validation notice.” Id. at 135. “A
notice is overshadowing or contradictory if it would make the