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Valle v. First National Collection Bureau, Inc.

United States District Court, S.D. Florida

May 16, 2017

Ruby Valle, Plaintiff
v.
First National Collection Bureau, Inc., Defendant

          ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

          Robert N. Scola, Jr. United States District Judge

         Plaintiff Ruby Valle brings this suit against First National Collection Bureau, Inc. (“FNCB”) for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (“FDCPA”) and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq., (“FCCPA”). This matter is before the Court on the Defendant's Motion for Judgment on the Pleadings (ECF No. 16). For the reasons set forth in this Order, the Court grants the Motion for Judgment on the Pleadings (ECF No. 16).

         1. Background

         On October 10, 2016, FNCB sent the Plaintiff a collection letter in an attempt to collect a consumer debt. (Compl. ¶ 26, ECF No. 1.) The Plaintiff alleges that she defaulted on the debt more than five years ago and has made no payment toward the debt since defaulting, and therefore any legal action to collect the debt is time-barred. (Id. ¶¶ 30-31.) A copy of the collection letter is attached to the Complaint as Exhibit A. (Compl. Ex. A, ECF No. 1-3) The Plaintiff alleges that the collection letter violated a variety of provisions of the FDCPA, as well as the FCCPA. (Compl. ¶¶ 40-45, ECF No. 1.) The Plaintiff seeks statutory and actual damages, an injunction prohibiting FNCB from engaging in further collection activities directed at the Plaintiff, and costs and reasonable attorneys' fees. (Id. at 21-22.)

         2. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is proper when no issues of material fact exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially noticed facts.” Cunningham v. Dist. Attorney's Office, 592 F.3d 1237, 1255 (11th Cir. 2010). A court ruling on a 12(c) motion must “accept all the facts in the complaint as true and view them in the light most favorable to the nonmoving party.” Id.

         3. Analysis

         A. Alleged Violations of the FDCPA

         “In order to prevail on an FDCPA claim, Plaintiff must establish that: (1) he was the object of collection activity arising from consumer debt; (2) Defendant qualifies as a ‘debt collector' under the FDCPA; and (3) Defendant engaged in an act or omission prohibited by the FDCPA.” Dunham v. Lombardo, Davis & Goldman, 830 F.Supp.2d 1305, 1306-07 (S.D. Fla. 2011) (Seitz, J.). Violations of the FDCPA are assessed using the “least sophisticated consumer standard.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94 (11th Cir. 2010) (citing Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175-77 (11th Cir. 1985)). This standard “looks to the tendency of language to mislead the least sophisticated recipients of a debt collector's letters.” Id. “The least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Id. (internal quotations and citations omitted). The standard has an “objective component” that “prevents liability for bizarre or idiosyncratic interpretations of collection notices.” Id. (quoting United States v. Nat'l Fin. Serv.'s, Inc., 98 F.3d 131, 136 (4th Cir. 1996)).

         The Defendant does not dispute that the Plaintiff was the object of collection activity arising from consumer debt, or that the Defendant qualifies as a debt collector under the FDCPA. The parties' disputes concern whether the Defendant engaged in an act or omission prohibited by the FDCPA. The Court will analyze each provision of the FDCPA that the Defendant is alleged to have violated in turn.

         (1) Alleged Violation of 15 U.S.C. § 1692g(a)

         15 U.S.C. § 1692g(a) states that, “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication. . .send the consumer a written notice containing -

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement 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 to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.”

         The Plaintiff asserts that the collection letter violated § 1692g(a) by failing to adequately inform the Plaintiff of these rights, as well as how to exercise these rights. (Compl. ¶ 41(a), ECF No. 1.)

         However, the collection letter includes all of the information required by § 1692g(a), including an almost verbatim recitation of the information required by § 1692g(a)(3)-(5). (Compl. Ex. A, ECF No. 1-3.) The Complaint asserts that merely quoting the statutory language does not adequately inform the consumer of his or her rights, but the Complaint fails to identify specifically how the collection letter fails to adequately inform a consumer of his or her rights. (See Compl. ¶ 41(a), ECF No. 1.) The Plaintiff's response to the Motion for Judgment on the Pleadings broadly asserts that the Plaintiff “raises issue with the use of statutory language, ” but again fails to explain how the language in the collection letter failed to comply with § 1692g. (Resp. at 21, ECF No. 23) (emphasis in original).

         The Plaintiff cites two cases that also involved alleged violations of § 1692g(a). (Compl. ¶ 41(a), ECF No. 1.) In the first case, the plaintiff alleged that the defendant violated § 1692g(a)(3) by omitting the phrase “by the debt collector” from the statutorily required notice 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 to be valid by the debt collector.” DeCapri v. Law Offices of Shaprio Brown & Alt, LLP, No. 3:14cv201-HEH, 2014 WL 4699591, at *5 (E.D. Va. Sept. 19, 2014). The court denied the defendant's motion to dismiss the alleged violation, holding that omission of the phrase “by the debt ...


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