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Maximiliano v. Simm Associates, Inc.

United States District Court, S.D. Florida

September 17, 2013

SERGIO MAXIMILIANO, Plaintiff,
v.
SIMM ASSOCIATES, INC., Defendant.

          ORDER

          BETH BLOOM, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment, ECF No. [34] (the “Motion”). The Court has carefully reviewed the Motion, the record, all supporting and opposing filings, the exhibits attached thereto, and is otherwise fully advised. For the reasons that follow, Defendant's Motion is granted.

         I. BACKGROUND

         1. Plaintiff's Claims

         Plaintiff, Sergio Maximiliano (“Plaintiff”), has filed a putative class action against Defendant Simm Associates, Inc. (“Simm”) asserting claims for purported violations of the Fair Debt Collection Practices Act (“FDCPA”). See ECF No. [8]. Plaintiff's claims are based upon a September 12, 2016 demand letter sent by Simm seeking payment of a consumer debt. The letter directed to Plaintiff states in pertinent part:

CLIENT: PAYPAL CREDIT BALANCE $3, 986.07 ACCOUNT #: ************7010 SIMM #: ***8871
ORIGINAL CREDITOR: Comenity Capital Bank ORIGINATION DATE: 09/17/2013 CHARGED OFF: 10/23/2015
Your account has been forwarded to this office for collections. This is a formal demand upon you for your payment of this debt; however our client, PAYPAL CREDIT, has authorized us to accept a discounted payoff of your current outstanding balance to settle the account in full.

See ECF No. [8-1].

         The demand letter identifies “PAYPAL CREDIT” as the “CLIENT” on whose behalf Simm seeks to collect the debt and “Comenity Capital Bank” as the “ORIGINAL CREDITOR.” See ECF No. [8] at ¶¶ 14-15 (caps in original). It does not list a current creditor even though Comenity Capital Bank (“Comenity”) is the current creditor. Id. at ¶16; ECF No. [58] at ¶¶ 6-7.

         The two-count Amended Complaint sues Simm for a violation of 15 U.S.C. § 1692g(a)(2) for failure to name the creditor to whom the debt is owed in the demand letter and a violation of 15 U.S.C. § 1692e for sending a misleading and false demand letter that identifies PayPal Credit as the creditor (“CLIENT”) even though Comenity is the creditor to whom the debt is owed. See ECF No. [8]. It is undisputed that Plaintiff is a “consumer” as defined by 15 U.S.C. §1692a(3) and that Simm is a “debt collector” as defined by 15 U.S.C. §1692a(6). See ECF No. [58] at ¶¶ 1-2.[1]

         2. PayPal Credit

         PayPal Credit allows consumers to make online purchases without using a credit card by offering an open-ended credit plan from Comenity.[2] See ECF No. [35] at ¶ 8. PayPal Credit works like a virtual credit card in that Comenity pays the merchant on the consumer's behalf, and then seeks repayment from the consumer for all extensions of credit it has been authorized to charge to the consumer's account. Id. at ¶ 9. In this case, Plaintiff opened a Comenity account that was branded and marketed as PayPal Credit. Id. at ¶ 10.

         In support of its Motion, Simm provided screen shots of the PayPal homepage, which identifies PayPal Credit at the top of the screen. Id. at ¶¶ 11-12. Advertising on the PayPal website makes repeated references to PayPal Credit such as: “When you need to buy something, you don't want to wait. With PayPal Credit, you can enjoy special financing offers . . . .;” “Easy Payments with PayPal Credit lets you get what you need, when you need it, and budget your payments as you go;” “Whether you are on your computer or on your mobile device, PayPal Credit gives you the flexibility to check your statements, make payments and more right from your PayPal account.” Id. at ¶ 13.

         PayPal Credit's homepage does not contain any references to Comenity. Id. at ¶ 14. The website's references to Comenity are located in the Frequently Asked Questions page, which can only be accessed by selecting the “FAQ” link. Id. at ¶ 15. Comenity's role as the true creditor is not revealed unless a consumer goes under “PayPal Credit Basics” and selects “What is PayPal Credit.” Id. at ¶ 16. At this point, it is revealed that “PayPal Credit is a line of credit offered by Comenity Capital Bank that gives you the flexibility to pay for your purchase now, or pay over time.” Id. The FAQs also make limited references to Comenity when discussing credit approval. See ECF No. [35-4]. Other than these few references to Comenity, the remainder of the FAQs refer to the financial product offered as “PayPal Credit.” ECF No. [35] at ¶ 17. Other FAQs include topics such as: ...


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