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Azzara v. National Credit Adjusters, LLC

United States District Court, N.D. New York

June 19, 2017

JESSICA AZZARA, Plaintiff,
v.
NATIONAL CREDIT ADJUSTERS, LLC, Defendant.

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge.

         I. INTRODUCTION

         Before 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.

         II. DISCUSSION

         The 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.

         a. Procedural History

         Plaintiff 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).

         b. Liability

         Plaintiff 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.

         At a 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.

         15 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.

         15 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.

         15 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)).

         “Validation 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 least ...


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