OPINION AND ORDER
KARAS, District Judge.
Plaintiffs Paul S. Foti, Chris Zebro, and Zovinar Ashjian (collectively Plaintiffs) bring this action, on behalf of themselves and all other persons similarly situated, alleging that Defendant NCO Financial Systems, Inc. (Defendant or "NCO"), a debt collector, violated the Fair Debt Collection Practices Act ("FDCPA" or "Act"), 15 U.S.C. § 1692 et seq. Specifically, Plaintiffs allege violations of the FDCPA based on two communications: (1) a January 18, 2004 pre-recorded message; and
For the purpose of this Motion, the Court will take as true the facts alleged in the Amended Complaint, which are as follows. On January 1, 2004, Foti received a collection letter ("January 1 Letter") from NCO seeking to collect a debt of $78.75 on behalf of Columbia House Company. (Am. Compl. ¶ 21, Ex. A) The January 1 Letter provides, in pertinent part:
(Am.Compl.Ex. A) Plaintiffs do not contest that this letter complied with the FDCPA requirements (Am.Compl.¶ 22), and, in particular, the requirement that a debt collector's initial communication provide
Plaintiffs' allegations stem from two subsequent communications. First, Plaintiffs contend that on or about January 18, 2004, NCO called Foti's residence and left the following uniform, pre-recorded, and standardized message ("January 18 Pre-Recorded Message"):
(Am.Compl.¶ 27, Ex. B) (emphasis by Plaintiffs omitted) Plaintiffs allege that this message was "communicated to millions of other debtors, including members of the Class." (Am.Compl.¶ 26)
Second, Plaintiffs contend that on January 26, 2004, Foti called the toll-free number (referenced in the message outlined above), and had the following conversation with an NCO agent ("January 26 Conversation"):
(Am.Compl.¶ 31, Ex. C) (emphasis by Plaintiffs omitted)
The Amended Complaint also alleges that "Plaintiffs Zebro and Ashjian had substantially similar experiences as did Foti and were subjected to additional deceptive and harassing collection practices." (Am. Compl. ¶ 33) For purposes of this Motion, however, the Court examines only the question of whether the allegations as they relate to the January 18 Pre-Recorded Message and the January 26 Conversation survive the Motion to Dismiss. The question of whether the "substantially similar experiences" of Zebro and Ashjian are such that they fall within the same class of plaintiffs as Foti need not be resolved at this time.
Moreover, the Amended Complaint indicates that "Ashjian (i) challenged—in writing—the alleged debt NCO was retained to collect, and (ii) made repeated written requests to NCO that they cease any and all collection communications" (Am. Compl.¶ 36); and that "NCO . . . did not heed Ashjian's written requests to cease communications" (Am.Compl.¶ 37), or "acknowledge Ashjian's written challenges of the debts NCO was attempting to collect and, in fact, continues to attempt to collect." (Am.Compl.¶ 38) These allegations relate to Count Three, discussed below, which is not the subject of the present dispute. Rather, this Motion focuses on the two specific communications outlined above—(i) the January 18 Pre-Recorded Message and (ii) the January 26 Conversation.
Based on the above correspondence, Plaintiffs allege several violations of the FDCPA.
Plaintiffs append to both Counts One and Two general claims that NCO used "unfair or unconscionable means to collect or attempt to collect any debt" in violation of 15 U.S.C. § 1692f.
NCO moves to dismiss on two principal grounds. First, in connection with Count One, NCO argues that the January 18 Pre-Recorded Message does not violate § 1692g or § 1692e(10) of the FDCPA.
A. The FDCPA
The FDCPA was enacted "to eliminate abusive debt collection practices by debt collectors, to insure those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692e. Congress found such abuses by debt collectors to be "serious and widespread." Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996).
"The FDCPA establishes a civil cause of action against `any debt collector who fails to comply with any provision of this subchapter with respect to any person.'" Sakrani v. Koenig, No. Civ. A 05-1192, 2006 WL 20514, at *2 (D.N.J. Jan. 3, 2006) (quoting 15 U.S.C. § 1692k(a)). Specifically, the FDCPA "prohibits unfair or unconscionable collection methods, conduct which harasses, oppresses or abuses any debtor, and the making of any false, misleading, or deceptive statements in connection with a debt, and it requires that collectors make certain disclosures." Acosta v. Campbell No. 6:04 Civ. 761, 2006 WL 146208, at *12 (M.D.Fla. Jan. 18, 2006) (citing 15 U.S.C. §§ 1692d, 1692e, 1692f). The Act also requires debt collectors to notify debtors about their ability to challenge the validity of a debt and to provide other basic information. See 15 U.S.C. § 1692g.
B. Standard of Review
NCO seeks to dismiss the Amended Complaint, pursuant to Fed.R.Civ.P. 12(c). While the Motion is styled as being brought pursuant to Rule 12(c), because the Motion was filed prior to the filing of an answer to the Amended Complaint, it is more properly construed as a Motion made pursuant to Fed.R.Civ.P. 12(b)(6). Cf. Harris v. City of New York, 186 F.3d 243, 249 (2d Cir.1999) ("[W]e look to the allegations in [the amended complaint], which is the legally effective pleading for Rule 12(b)(6) purposes."); Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) ("It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.'"), superseded by statute on other grounds, Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4, as recognized in In re Paracelsus Corp. Sec. Litig., 61 F.Supp.2d 591, 595 (S.D.Tex.1998) (quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977)). Even if, however, this Court were to consider the Motion as one made pursuant to Rule 12(c), the standard under Rule 12(c) is substantively identical to that under 12(b)(6). See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) ("In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.'") (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999)).
In examining a motion to dismiss, the Court must "accept as true the factual allegations made in the complaint and draw all inferences in favor of the plaintiffs." Grandon v. Merrill Lynch & Co., Inc., 147 F.3d 184, 188 (2d Cir.1998). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally
C. Whether NCO Sent "Communications" to Plaintiffs
In order to be subject to some of the protections of the FDCPA, correspondence must be a "communication" within the meaning of the Act. There is no dispute that the January 26 Conversation constitutes a "communication."
NCO argues, however, that the January 18 Pre-Recorded Message is not a "communication" within the meaning of the FDCPA because it "does not convey any information regarding a debt, but instead simply requests a return call regarding an important business matter." (NCO Mem. 4) NCO suggests that to the extent the message is not a "communication," Plaintiffs' § 1692g and § 1692e(10) claims (in Count One), and Plaintiffs' § 1692e(11) claims (in Count Two) should be dismissed with respect to the January 18 Pre-Recorded Message.
While it is clear that the message must be a "communication" to be protected by § 1692e(11) (requiring disclosure in "subsequent communications") (emphasis added), correspondence does not necessarily need to be a "communication" in order to be subject to Plaintiffs' § 1692g claims in Count One. Rather, the § 1692g claim, discussed below, addresses whether the January 18 Pre-Recorded Message "overshadowed" the otherwise valid initial communication, the January 1 Letter. Resolution of that claim, however, does not depend on whether the January 18 Pre-Recorded Message is a "communication" under the Act. 15 U.S.C. § 1692a(2) ("The term `communication' means the conveying of information regarding a debt directly or indirectly to any person through any medium."). Additionally, the § 1692e(10) claim (in Count One) hinges on whether the debt collector made "use of any false representation or deceptive means to collect or attempt to collect any debt. . . ." 15 U.S.C. § 1692e(10). This claim also does not depend on a finding that an allegedly false representation was in the form of a "communication" under the Act. Thus, even if NCO prevails in establishing that the January 18 Pre-Recorded Message does not constitute a "communication," this would only implicate the § 1692e(11) claim in Count Two.
In any event, NCO's Memorandum of Law in support of its Motion failed to cite one case in support of its position that the January 18 Pre-Recorded Message is not a communication, and pointed to only one case at oral argument.
"The FDCPA defines `communication' very broadly as the conveying of information regarding a debt directly or indirectly to any person through any medium.'" Romea v. Heiberger & Assocs., 163 F.3d 111, 114 n. 2 (2d Cir.1998) (quoting 15 U.S.C. § 1692(a)(2)) (holding that notice demanding payment of rent arrearage or surrender of rented premises to landlord was a "communication" within the meaning of the FDCPA). While the Second Circuit has not precisely defined the scope of the term "communication," it has suggested in other contexts that, consistent with Congress's intent in enacting the FDCPA, the statute should be broadly construed. See Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989) Mt is apparent that the prescribed requirement can further the Congressional purpose in enacting the FDCPA in 1977, which was to prevent `abusive, deceptive, and unfair debt collection practices.'") (citations omitted) (holding that under the pre-amended version of § 1692e(11), disclosure is required in all communications);
Outside the Second Circuit, at least one court has rejected the very claim made by Defendant. In Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104 (C.D.Cal. 2005), the debt collector argued that its standard voicemail messages to debtors were not "communications" under the FDCPA because "they did not convey[ information regarding a debt directly or indirectly to any person."
Id. at 1116. Further, as is evident from Plaintiffs' allegations in this case, the Hosseinzadeh court found it significant that the voicemails "were merely the first step in a process designed to communicate with plaintiff about her alleged debt." Id.
Hosseinzadeh is on all-fours with this case. Defendant's voicemail message, while devoid of any specific information about any particular debt, clearly provided some information, even if indirectly, to the intended recipient of the message. Specifically,
The scope of the term "communication" has been addressed in other contexts as well, including under § 1692c(b), which regulates communications between debt collectors and third parties (people other than the debtor).
However, in West v. Nationwide Credit, 998 F.Supp. 642, 644 (W.D.N.C.1998), the court rejected a narrow interpretation of the word "communication," similar to that advanced by NCO in this case. The plaintiff in West alleged that defendants violated § 1692c(b) by contacting plaintiffs neighbor. Defendants argued that a debt collector's phone call informing a neighbor that he had a "very important" matter to discuss did not violate § 1692c(b) because no information was actually conveyed about plaintiffs debt. The West court rejected this narrow interpretation of "communication" in favor of a broader interpretation. Id. at 644. In reaching this conclusion, the West court noted that "[i]n interpreting the meaning of a statute, it is well settled that `[t]he "plain meaning" of statutory language controls its construction,'" and went on to examine the dictionary definitions of "regarding." Id. (quoting
This conclusion has been embraced by other courts as well in the context of applying § 1692c(b). See, e.g., Henderson, 2001 WL 969105, at *2 (rejecting defendant's argument that letter sent to employer seeking information about whether plaintiff was employed, her wage scale, her type of employment, the full name of her employer, and if terminated, the name of her present employer, did not violate § 1692c(b) because it did not suggest a debt collection purpose).
Thus, given the choice of language by Congress, the FDCPA should be interpreted to cover communications that convey, directly or indirectly, any information relating to a debt, and not just when the debt collector discloses specific information about the particular debt being collected. Indeed, a narrow reading of the term "communication" to exclude instances such as the present case where no specific information about a debt is explicitly conveyed could create a significant loophole in the FDCPA, allowing debtors to circumvent the § 1692e(11) disclosure requirement, and other provisions of the FDCPA that have a threshold "communication" requirement, merely by not conveying specific information about the debt. In fact, under Defendant's interpretation of "communication," a debt collector could call regularly after the thirty-day validation notice is sent, and not be subject to § 1692e(11)'s requirement so long as the message did not convey specific information about the debt.
The term "communication," of course, is limited to those situations involving the "conveying of information regarding a debt directly or indirectly." 15 U.S.C. § 1692(a)(2). A phone call by a debt collector that in no way regards, or relates to, an outstanding debt would not violate the Act. See Bailey, 154 F.3d at 388-89. Here, however, there appears to be no question that the call related to the collection of a debt—when Foti returned the call he was explicitly told that it was in connection with the collection of a debt. Moreover, even under a more narrow reading of the term "communication," requiring specific information about the debt to be conveyed, the January 18 Pre-Recorded Message arguably satisfies that standard. The message indicates that it is a call from NCO Financial Systems—such identification could suggest to a listener who is familiar with the fact that NCO Financial Systems is a debt collector—and that the call is about a debt, and thus may indirectly convey information about the debt. This conclusion is not inconsistent with the Court's rejection, below, of NCO's argument that Count Two should be dismissed as to the January 18 Pre-Recorded Message. Arguably, the message sufficiently conveys information about a debt to be deemed a "communication," particularly given the Second Circuit's suggestion that the Act should be broadly construed, despite the fact the Court concludes that it fails to comply with § 1692e(11)'s disclosure requirement under the "least sophisticated consumer" standard.
Finally, Defendant suggests that its interpretation of "communication" is necessary to avoid placing debt collectors in a virtual "Hobson's choice"—debt collectors must disclose their identity as a debt collector to comply with § 1692e(11)'s requirements, but are prohibited from leaving a message identifying themselves as such by § 1692c(b)'s prohibition on communications to third parties. (NCO Mem. 7) Thus, Defendant argues that "[t]he safest thing to do is to recognize what it is. It is not a communication. Once you recognize that it is not a communication, then there is no obligation to identify that you are a debt collector." (Tr. 8) This argument is unconvincing.
The fact that FDCPA provisions affect the means by which NCO wishes to collect the debt during the thirty-day validation period does not warrant disregarding Congress's clear intent to combat widespread abuse in debt collection practices. NCO's argument is essentially based on the assumption that it is somehow entitled to leave pre-recorded messages. It is true that the FDCPA does not prevent all conduct by the debt collector during the thirty-day validation period. See Orenbuch v. Computer Credit, Inc., No. 01 Civ. 9338, 2002 WL 1918222, at *2 (S.D.N.Y. Aug. 19, 2002) ("[N]othing in the FDCPA prevents a debt collector that has not received a request for validation or other reply from a consumer from continuing to attempt to collect the debt during the 30-day validation
However, just because a debt collector is permitted to continue to attempt to collect the debt does not entitle the collector to use any means, even if those means are the most economical or efficient. See Clomon v. Jackson, 988 F.2d 1314, 1321 (2d Cir.1993) ("It is apparent that mass mailing may sometimes be the only feasible means of contacting a large number of delinquent debtors, particularly when many of those debtors owe relatively small sums. But it is also true that the FDCPA sets boundaries within which debt collectors must operate."). In this case, the fact that NCO may not be able to leave a pre-recorded message that complies with both § 1692e(11) and § 1692c(b) of the Act in no way warrants a conclusion that "communication" should be narrowly interpreted. Rather, it merely suggests that a debt collector is not permitted to leave a prerecorded message in violation of the FDCPA. Debt collectors, however, could continue to use other means to collect, including calling and directly speaking with the consumer or sending appropriate letters. Thus, the alleged "Hobson's Choice" in this case is self-imposed by NCO. It is only because of the method of debt collection selected—calling and leaving the type of pre-recorded messages— that NCO is faced with this potential dilemma. "As the Supreme Court has held in the general context of consumer protection—of which the Fair Debt Collection Practices Act is a part—`it does not seem unfair to require that one who goes deliberately close to an area of proscribed conduct shall take the risk that he may cross the line.'"
In sum, the January 18 Pre-Recorded Message is properly deemed a "communication" under the FDCPA.
D. Whether NCO Violated the FDCPA By "Overshadowing" the Validation Notice
The next question is whether the two subsequent communications—(1) the January 18 Pre-Recorded Message and (2) the January 26 Conversation—violated the FDCPA by "overshadow[ing] [the January 1 Letter's proper validation notice] in such a way as to create confusion as to Plaintiffs' rights, and thereby illegally shorten the 30 day period in which a debtor may request verification of the alleged debt." Orenbuch, 2002 WL 1918222, at *1. This is a question of law, and is therefore properly considered on a motion to dismiss. See Russell, 74 F.3d at 33; accord Wilson v. Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir.2000) ("[T]he Seventh Circuit is the only court of appeals to have held that whether an unsophisticated consumer would be confused by allegedly contradictory or overshadowing language is a question of fact which precludes dismissal under Fed.R.Civ.P. 12(b)(6).") (citing, inter alia, Russell).
1. Applicable Legal Standards
The FDCPA mandates that debt collectors provide debtors with a written validation notice, informing debtors of their rights under § 1692g, including, among other things, the right to dispute the validity of the debt in question within thirty days of receiving the notice
Even when the initial validation notice is adequate, a defendant "may still be liable under § 1692g and § 1692e(10) if it sends a subsequent communication within the validation period that `overshadows or contradicts' such notice." Barrientos v. Law Offices of Mark L. Nichter, 76 F.Supp.2d 510,
"The FDCPA establishes a strict liability standard; a consumer need not show intentional violation of the Act by a debt collector to be entitled to damages."
The Second Circuit has explained that "[w]hen determining whether § 1692g has been violated, an objective standard, measured by how the `least sophisticated consumer' would interpret the notice received from the debt collector, is applied." Russell 74 F.3d at 34 (citing Clomon, 988 F.2d at 1318) (additional citations omitted); see also Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir.2005); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (2d Cir.2003); McStay v. I.C. Sys., Inc., 308 F.3d 188, 190 (2d Cir.2002). That is, "the test is how the least sophisticated consumer—one not having the astuteness of a `Philadelphia lawyer' or even the sophistication of the average, everyday, common consumer—understands the notice he or she receives." Russell, 74 F.3d at 34.
"The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon, 988 F.2d at 1318. At the same time, courts have been conscious of countervailing interests: "It should be emphasized that in crafting a norm that protects the naive and the credulous the courts have carefully preserved the concept of reasonableness. Indeed, courts have consistently applied the least-sophisticatedconsumer standard in a manner that protects debt collectors against liability for unreasonable misinterpretations of collection notices." Id. at 1319 (internal citations omitted); see also Acheampongtieku, 2005 WL 2036153, at *3 ("[T]he least sophisticated consumer standard serves the FDCPA's dual purpose: to protect the consumer from unscrupulous collection
With this standard in mind, the Court considers the two communications at issue.
2. The January 18 Pre-Recorded Message
The January 18 Pre-Recorded Message is comprised of approximately thirty words. After greeting the listener ("Good day"), the message: (i) identifies the caller as NCO Financial Systems; (ii) states that the call is about a personal business matter; (iii) which requires immediate attention; and (iv) ends by asking the recipient of the message to "please call back," providing a toll-free number. (Am. Compl. ¶ 27, Ex. B) The question, therefore, is whether this message confuses or overshadows the initial validation notice in the eyes of the reasonable, least sophisticated consumer, and, therefore, violates § 1692g.
Plaintiffs claim that this message does in fact violate § 1692g by overshadowing the initial validation notice. Plaintiffs' main argument is that the message emphasized that the matter requires "immediate attention," and, accordingly, might suggest to the least sophisticated consumer that s/he is not entitled to a thirty-day validation period. Indeed, a number of cases have found violations of the FDCPA where a written notice includes the words "immediate attention" or similar language suggesting an urgency to resolution of the debt, even without demanding immediate payment.
These cases, however, are distinguishable from the present circumstances. Those decisions have focused less on the words "immediate attention" as constituting a per se violation of the FDCPA, and more on whether the overall tenor of the notice creates an impression of dire urgency that might confuse the least sophisticated consumer about his/her validation rights. For example, in Roz-Ber, the court focused on the overall sense of urgency conveyed in the notice:
51 F.Supp.2d. at 250.
Flowers also is different in that the follow-up letter was specifically phrased in a manner that suggested that the validation period had expired by referencing the fact that "[y]ou were previously notified and given ample opportunity to resolve this matter, and you have failed to do so."
In this case, the January 18 Pre-Recorded Message simply indicated that the call was "regarding a personal business matter that requires your immediate attention." (Am.Compl. ¶ 27, Ex. B) There is no suggestion that the thirty-day validation period should be disregarded, or that immediate payment is required. Nor is there an implicit suggestion that failure to cooperate immediately could jeopardize resolution of the debt. On the contrary, the message merely asks the consumer for a return call ("please call back").
As noted above, "nothing in the FDCPA prevents a debt collector that has not received a request for validation or other reply from a consumer from continuing to attempt to collect the debt during the 30 day validation period, provided that, in so doing, it does not create the impression that the consumer has less than 30 days in which to dispute the debt." Orenbuch, 2002 WL 1918222, at *2. Thus, Plaintiffs' argument essentially boils down to the claim that the mere use of the phrase "immediate attention" constitutes an overshadowing of a validation notice. There is little, if any, support in the caselaw for this proposition.
First, a number of cases within the Second Circuit have distinguished between merely contacting the debtor (as happened here), and demanding or urging immediate payment of the debt (which did not happen here).
Moreover, a great number of courts have rejected the argument that the urgency conveyed by phrases such as "immediate
Thus, for example, notices from debt collectors seeking contact from the debtor, even if requested immediately or urgently, are regularly found to be consistent with § 1692g. As the court noted in Lerner v. Forster, 240 F.Supp.2d 233, 238 (E.D.N.Y. 2003): "It does not follow that simply because a collection letter instructs a consumer to contact a debt collector that the validation notice is necessarily overshadowed or contradicted." Instead, the "request for the consumer to contact [the debt collector] . merely `encourages the debtor to communicate with the debt collection agency. . . ." Madonna v. Acad. Collection Serv., Inc., No. 3 95 Civ. 000875, 1997 WL 530101, at *5 (D.Conn. Aug. 12, 1997) (quoting Terran v. Kaplan, 109 F.3d 1428, 1430 (9th Cir.1997)). This sentiment has been echoed by other courts in rejecting claims similar to those made by Plaintiffs here. See, e.g., Terran, 109 F.3d at 1434 ("Here, the request that the alleged debtor immediately telephone a collection assistant does not overshadow the language in the notice that the alleged debtor has thirty days in which to dispute the debt."); Acheampongtieku, 2005 WL 2036153, at *4 (noting that "the Collection Letter simply requests that the debtor contact Allied"); Spira, 358 F.Supp.2d at 159 ("[T]he fact that the Follow-up Letter `instructed' Plaintiff `to pay in full or call at once, even though the thirty day validation period was still in effect,' did not limit her rights under the Act. . . . ").
In this case, the Court concludes that the language of the January 18 Pre-Recorded Message could not reasonably confuse even the least sophisticated consumer.
3. The January 26 Conversation
In contrast, to the extent NCO's argument for dismissal can even be construed to encompass the January 26 Conversation, the Court concludes that dismissal of that claim is inappropriate. The January 26 Conversation repeatedly demands payment, and threatens continuous demands for payment absent immediate remittance, all before the thirty-day validation period had expired. (Am. Compl. ¶ 31, Ex. C) ("Q: So what do you need me to do today? A: Pay the account.") (emphasis added) Such a conversation is likely to confuse the least sophisticated consumer as to whether s/he continues to enjoy the protections of the thirty-day validation period. See Savino, 164 F.3d at 86 (noting that debt collector's "violation of the Act consisted of its decision to ask for immediate payment without also explaining that its demand did not override the consumer's rights under Section 1692g to seek validation of the debt").
In sum, the Motion to Dismiss Count One is granted to the extent that it challenges the sufficiency of the Amended Complaint's allegations relating to the January 18 Pre-Recorded Message. However, NCO's challenge to Count One as it relates to the January 26 Conversation is denied.
4. The § 1692e(10) Claims
NCO also seeks to dismiss the claims brought pursuant to § 1692e(10) in Count One. NCO argues that "[s]ince the prerecorded message did not violate § 1692g, it cannot be `false or deceptive' as contemplated by § 1692e(10)." (NCO Mem. 5) Section 1692e(10) prohibits "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10). The Second Circuit has explained that "a collection notice is deceptive when it can be reasonably read to have two or more different meanings, one of which is inaccurate. The fact that the notice's terminology was vague or uncertain will not prevent it from being held deceptive under § 1692e(10) of the Act." Russell, 74 F.3d at 35 (internal citations omitted).
The standard for determining a violation of § 1692e(10) is essentially the same as that for § 1692g. See id. ("Because the initial collection notice in the instant case was reasonably susceptible to
Accordingly, for the reasons stated above, the Court grants the Motion to Dismiss the § 1692e(10) claim (in Count One) as to the January 18 Pre-Recorded Message, and denies the Motion to Dismiss the § 1692e(10) claim (also in Count One) as to the January 26 Conversation.
5. The § 1692f Claims
NCO also argues that "[s]ince both the §§ 1692g and 1692e(10) claims are unsupportable, the ancillary § 1692f claim fails." (NCO Mem. 6) Section 1692f generally prohibits a debt collector from employing "unfair or unconscionable means to collect" a debt. 15 U.S.C. § 1692f. Eight subsections list certain practices that violate the section, however, "conduct that may be deemed `unfair or unconscionable' is not limited to the acts enumerated in subsections (1) through (8)." Bryant v. Bonded Account Service/Check Recovery, Inc., 208 F.R.D. 251, 258 (D.Minn.2000). Instead, § 1692f "allows the court to sanction improper conduct that the FDCPA fails to address specifically." Adams v. Law Offices of Stuckert & Yates, 926 F.Supp. 521, 528 (E.D.Pa.1996).
Here, Plaintiff does not allege any improper acts listed within Section 1692f. This alone, of course, is not fatal as § 1692f may provide a cause of action for conduct that is not specifically listed in that section or any other provision of FDCPA. However, Plaintiffs' Complaint is deficient in that it does not identify any misconduct beyond that which Plaintiffs assert violate other provisions of the FDCPA. See Tsenes v. Trans-Cont'l Credit and Collection Corp., 892 F.Supp. 461, 466 (E.D.N.Y.1995) ("[T]he Complaint is devoid of support for the contention that the defendant engaged in practices that were `unfair' or `unconscionable' within the meaning of the section; all the allegations in the Complaint support claims asserted under either §§ 1692g or 1692e."). "As such, [Plaintiffs have] failed to state a cause of action under § 1692f, and the [D]efendant's motion should be granted to that extent."
E. Whether NCO Complied With the § 1692e(11) Requirements
NCO also seeks dismissal of Count Two, alleging violations of § 1692e(11). "[Section] 1692e provides a broad prohibition on false or misleading statements. . . . The section lists a variety of misleading tactics, but notes that the list is not exhaustive." Forman v. Acad. Collection Serv., Inc., 388 F.Supp.2d 199, 203 (S.D.N.Y.2005). At issue in this case is the specific provision requiring a debt collector to disclose certain information:
15 U.S.C. § 1692e(11). Here, the allegations in the Amended Complaint are limited to the "subsequent communications" (Am.Compl. ¶ 80)—that is, communications after the initial January 1 Letter. As the plain language of the statute makes clear, § 1692e(11), provides that "in subsequent communications with the consumer the debt collector need only state that the communication is from a debt collector.
The Second Circuit has held that "there simply is no requirement that the letter quote verbatim the language of the statute." Emanuel v. Am. Credit Exch., 870 F.2d 805, 808 (2d Cir.1989); see also Forman, at 205 ("While [the] letter does not track the language of the statute verbatim, it is not required to as long as the warning comes across."); Cavallaro, 933 F.Supp. at 1156 ("In order to comport with the FDCPA, the notice does not have to quote verbatim the language of § 1692e(11).") (citing Emanuel, 870 F.2d at 808). In fact, even Plaintiffs' counsel acknowledges that "I don't believe that there are magic words that you are absolutely, unequivocally obligated to say." (Tr. 37)
In determining whether there is a violation of § 1692e, courts apply the least sophisticated consumer test. Clomon, 988 F.2d at 1318; see also Forman, at 203, 205 (applying least sophisticated consumer test to issue of whether violation of § 1692e(11) occurred). However, the courts appear to agree that to comply with § 1692e(11), the debt collector must "clearly" be identified in the communication to the debtor. See Epps, 1998 WL 851488, at *8 ("[A] debt collector satisfies subsection 11's notice requirement as long as it is clear from the subsequent letter that the sender is a debt collector.").
NCO seeks to dismiss Count Two with respect to both the (1) January 18 Pre-Recorded Message and the (2) January 26 Conversation. The Court concludes that dismissal is appropriate as to the January
1. January 18 Pre-Recorded Message
Apart from arguing that the January 18 Pre-Recorded Message is not a "communication," NCO's brief does not advance any argument in support of the claim that the January 18 Pre-Recorded Message complies with the disclosure requirements in § 1692e(11). (NCO Mem. 6-7) The Court concludes above that the January 18 Pre-Recorded Message is properly considered a "communication" within the meaning of the FDCPA. Moreover, to the extent NCO's argument can be construed as maintaining that the January 18 Pre-Recorded Message complied with the disclosure requirements, the Court rejects this argument.
The issue is whether the identification of the debt collection agency by name— "NCO Financial Systems"—is sufficient to fulfill the requirement of disclosure that "the communication is from a debt collector." 15 U.S.C. § 1692e(11). The Court notes that, other than the name "NCO Financial Systems," the January 18 Pre-Recorded Message contains no other suggestion or clue that the correspondence is from a debt collector. Put another way, this is not a case where the fact that the communication is from a debt collector would be apparent even to the least sophisticated consumer. Compare Epps, 1998 WL 851488, at *9 (holding that where letter indicated "this is an attempt to collect a debt and any information obtained will be used for that purpose," and that "it is imperative that you immediately forward the past due balance," the letter would not confuse an unsophisticated consumer about the author's status as a debt collector); Ross v. Commercial Fin. Servs., Inc., 31 F.Supp.2d 1077, 1079-80 (N.D.Ill.1999) (holding that letter, which disclosed that debt collector was a "different kind of debt collection company," satisfied § 1692e(11), even though it did not use exact term "debt collector").
Rather, there is nothing in the context of the January 18 Pre-Recorded Message that would clearly inform a consumer that s/he is speaking to a debt collector, or, for that matter, that the subject of the "business matter" requiring "immediate attention" is a debt. Instead, a consumer would have to, upon hearing the message, recall that it previously received mail from a debt collection agency by the name of "NCO Financial Systems."
NCO further argues that "[t]o the extent Foti's § 1692e(11) claim is premised on the subsequent [January 26 Conversation] . . . it should also be dismissed." (NCO Mem. 7) Plaintiffs do not even address this argument in their brief.
It is true that in the January 26 Conversation, the NCO representative never explicitly stated that "this a debt collector." However, after identifying that Foti was the caller, the NCO agent stated that NCO was "calling in regard to . . . two outstanding Columbia House accounts, one's for thirty eight dollars and thirteen cents and the other is for seventy eight dollars and seventy five cents. They've both been sent here into collections by Columbia House." (Am.Compl. ¶ 31, Ex. C) This statement is unlikely to confuse even the least sophisticated consumer—rather, it is clear that the call is in reference to "outstanding . . . accounts . . . [that have] been sent here into collections." (Am. Compl. ¶ 31, Ex. C) See Degonzague v. Weiss, Neuren & Neuren, 89 F.Supp.2d 282, 285 (N.D.N.Y.2000) (holding no violation of § 1692e(11) where letter stated: "The above-captioned matter has been referred to this office for immediate attention by People's Bank in an attempt to collect a debt. Any information obtained will be used for that purpose.") (emphasis added in Degonzague). Thus, "when [listening to the conversation] in its entirety, the least sophisticated consumer would understand the warning message."
For the reasons outlined above, the Motion to Dismiss Count One is GRANTED as to the January 18 Pre-Recorded Message, but DENIED as to the January 26 Conversation. The Motion to Dismiss Count Two is DENIED as to the January 18 Pre-Recorded Message, but GRANTED as to the January 26 Conversation.
Thus, even if the Court accepts NCO's argument, this would only result in dismissal of Count One to the extent that it is based on the January 18 Pre-Recorded Message. Although the argument is not presented in NCO's brief, out of an abundance of caution, the Court will also consider whether NCO's argument also applies to the January 26 Conversation.
Hosseinzadeh, 387 F.Supp.2d at 1107.
Thus, "[t]o be prohibited, the third party communication need only be `in connection with the collection of a debt.'" Henderson v. Eaton, No. Civ. A. 01-0138, 2001 WL 969105, at *2 (E.D.La. Aug. 23, 2001).
Bailey, 154 F.3d at 388-89.
Bailey, however, is distinguishable from the present case in that the letter in that case listed future payment dates rather than seeking to collect on a debt. See id. at 389 ("A warning that something bad might happen if payment is not kept current is not a dun, nor does it seek to collect any debt, but rather the opposite because it tries to prevent the circumstance wherein payments are missed and a real dun must be mailed."). Moreover, the Bailey court was focused less on the question of whether the letter was "communication," and more on the question of whether it was "related to `the collection' of a debt." Id.
The Court agrees that provisions apart from § 1692e(11) might constrain a debt collector from making such persistent demands. See, e.g., 15 U.S.C. § 1692d(5)-(6). However, the fact that other provisions may provide some protections to consumers is not a basis for interpreting "communication" in a manner that would allow debt collectors to easily circumvent § 1692e(11), and other FDCPA provisions where there is a threshold "communication" requirement.
Joseph, 281 F.Supp.2d at 1163-64 (internal citations omitted). Thus, Joseph suggests courts could arguably harmonize the § 1692e(11) disclosure requirements and prohibition on third-party communications to permit disclosure in automated messages even where there might be some risk of disseminating information to third parties.
15 U.S.C. § 1692e (prior to 1996 amendment); see also Ignatowski v. GC Services, 3 F.Supp.2d 187, 189 n. 3 (D.Conn.1998). Thus, "[p]rior to the 1996 amendment, subsection 11 directed debt collectors to make two disclosures in communications with debtors: ` that the debt collector is attempting to collect a debt ["notice" disclosure] and  that any information will be used for that purpose ["warning" disclosure]: " Epps v. Etan Industries, Inc., No. 97 Civ. 8770, 1998 WL 851488, at *6 (N.D.Ill. Dec. 1, 1998) (quoting 15 U.S.C. § 1692e(11)). The Second Circuit interpreted this requirement as applying to both initial and follow-up conversations. See Pipiles, 886 F.2d at 26-27.
"[I]t is apparent that Congress, in amending subsection 11, lessened the burden on debt collectors by requiring them to make only the `notice' disclosure in subsequent communications with the debtor, and dropping the `warning' disclosure." Epps, 1998 WL 851488, at *8 (citing Scott Burnham, What Attorneys Should Know About The Fair Debt Collection Practices Act, 59 Mont. L.Rev. 179 (Summer 1998)).