United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY, Chief United States District Judge.
August 12, 2016, Plaintiff Benjamin Schwartz
(“Plaintiff”) filed the instant action in the
Civil Court of the City of New York, County of Kings, against
I.C. System, Inc. (“Defendant”), alleging
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. On September 16, 2016, Defendant removed the action
to this Court. (See Notice of Removal, Dkt. Entry
No. 1.) Plaintiff alleges that Defendant, a debt collector,
impermissibly collected from Plaintiff a 5.5% collection fee.
(See Complaint (“Compl.”), Dkt. Entry 1,
moves for summary judgment, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, for dismissal of the
Complaint on the grounds that there is no genuine dispute as
to any material fact that would entitle Plaintiff to the
relief requested in the Complaint. (See Motion for
Summary Judgment (“Mot.”), Dkt. Entry No. 16.)
Plaintiff opposed the motion, (See Memorandum in
Opposition (“Opp.”), Dkt. Entry No. 18.), and
Defendant replied. (See Reply in Support
(“Reply”), Dkt. Entry No. 17.) For the reasons
set forth below, Defendant's motion for summary judgment
a New York resident, incurred a debt of $3, 264.25 with Con
Edison. (See generally, Compl.) On November 20,
2015, Con Edison placed Plaintiff's account with
Defendant to collect the debt. (See Declaraction of
Michael Selbitschka in Support of Motion for Summary Judgment
(“Decl.”) ¶ 3-4, Dkt. Entry No. 16, Ex. 1.)
On November 26, 2015, Defendant sent Plaintiff a collection
letter (“Letter”). (Compl. ¶ 10.) The Letter
included a textbox with the heading “Payment Options,
” which listed three methods of payments. The first
payment option featured a QR code icon and directed Plaintiff
to “[m]ake online payment at:
www.yourpayment.com.” The second payment
option featured an envelope icon and directed Plaintiff to
“[m]ail check or money order payable to I.C. System,
Inc.” The third payment option featured a phone icon
and directed Plaintiff to “[c]all us.” The Letter
made no reference to fees associated with making an online
payment. (See Statement of Undisputed Material Facts
(“Rule 56.1 Statement”) ¶ 7, Dkt. Entry No.
16, Ex. 4; Plaintiff's Counter Statement of Material
Facts (“Rule 56.1 Counter Statement”), ¶ 7,
Dkt. Entry No. 18, Ex. 3.)
chose the first payment option, the online payment method.
When Plaintiff entered
“www.yourpayment.com” into his browser,
he was redirected automatically to pay.icsystem.com, a
website featuring Defendant's information and logo. (Opp.
at 10-11.) When Plaintiff made his payment on this website,
he was charged a 5.5% debit processing fee. (Compl. ¶
12.) Plaintiff alleges that he did not agree to such a
collection charge. (Id.)
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court must view all facts in the
light most favorable to the nonmoving party, but “only
if there is a ‘genuine' dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). “When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Id.
A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmoving party, however, may not rely on “[c]onclusory
allegations, conjecture, and speculation.” Kerzer
v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
“When no rational jury could find in favor of the
nonmoving party because the evidence to support its case is
so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper.” Gallo v.
Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l
Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
FDCPA was enacted to “protect consumers from a host of
unfair, harassing, and deceptive debt collection practices
without imposing unnecessary restrictions on ethical debt
collectors.” S. Rep. No. 95-382, at 1696 (1977).
“[B]ecause the FDCPA is primarily a consumer protection
statute, we must construe its terms in liberal fashion to
achieve the underlying Congressional purpose.”
Avila v. Riexinger & Associates, LLC, 817 F.3d
72, 75 (2d Cir. 2016) (internal citations and quotations
omitted). To determine whether a given communication runs
afoul of the FDCPA, courts apply an objective standard
measured by how the “least sophisticated
consumer” would interpret the communication. See
Clomon v. Jackson, 988 F.2d 1314, 1318-20 (2d Cir.
1692e of the FDCPA prohibits a “debt collector”
from using any “false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” The sixteen subsections of § 1962e set
forth a non-exhaustive list of practices that fall within
this ban. Avila, 817 F.3d at 75.
1629f of the FDCPA states, “[a] debt collector may not
use unfair or unconscionable means to collect or attempt to
collect any debt.” 15 U.S.C. § 1629f. Section
1629f(1) prohibits “[t]he collection of any amount
(including any interest, fee, charge or expense incidential
to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by
law.” A debt collection agency “may impose a
service charge if (i) the customer expressly agrees to the
charge in the contract creating the debt or (ii) the charge
is permitted by law.” Tuttle v. Equifax Check,
190 F.3d 9 (2d Cir. 1999).
District has permitted § 1692f claims when a debt
collector collects or attempts to collect processing or
transaction fees. See Campbell v. MBI Associates,
Inc.,98 F.Supp.3d 568 (E.D.N.Y. 2015) (granting
plaintiff's summary judgment motion on a § 1692f
claim where the collection letter stated, “[t]here will
be a $5.00 processing fee for all credit cards.”);
Quinteros v. MBI Associates, Inc.,999 F.Supp.2d 434
(E.D.N.Y. 2014) (finding that plaintiff stated a §
1692f(1) claim where the collection letter stated,
“[t]here will be a $5.00 processing fee for all credit
cards or checks over the phone.”); Shami v.
Nat'l Enter. Sys., 2010 WL 3824151 (E.D.N.Y. Sept.
23, 2010) (denying motion to ...