Case 1:17-cv-01249-AT Document 11 Filed ... - images.law.com · contract attached to the motion to dismiss because its contents were not disputed and the plaintiffs' references to

AO 72A (Rev.8/82)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ENOCK NY ASIMI,

Plaintiff,

CIVIL ACTION NO. v. 1: l 7-CV-1249-AT-LTW

DURHAM & DURHAM, LLP,

Defendant.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

This case is presently before the Court on Defendant Durham & Durham LLP's

Motion to Dismiss. (Doc. 5). For the reasons outlined below, this Court

RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. (Doc. 5).

DEFENDANT'S MOTION TO DISMISS

I. BACKGROUND

Plaintiff Enock Nyasimi ("Plaintiff') filed this lawsuit on April 6, 2017, against

Defendant Durham & Durham, LLP ("Durham"). In Plaintiffs Complaint, Plaintiff

appears to argue Durham violated Sections 1692e, 1692f, and 1692g(a)(2) of the Fair

Debt Collections Practices Act ("FDCP A") when it did not provide the identity of the

original or current creditor in an initial collection letter it sent to her. (Compl. ilil 11-15,

19-21 ); 15 U.S.C. §§ l 692e(2), (10), l 692f, l 692g(a)(2). Specifically, Plaintiff alleges

Case 1:17-cv-01249-AT Document 11 Filed 11/17/17 Page 1 of 18

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on or around April 26, 2016, Durham sent an initial collection letter to her. (Comp!.�

10). Plaintiff asserts the letter did not identify the original or current creditor. (Comp!.

� 12). According to Plaintiff, the letter mentioned "The Bortolazzo Group" but did not

identify The Bortolazzo Group's role with regard to ownership of the debt. (Compl. �

13). Plaintiff argues Durham's failure to do so is deceptive and misleading because it

does not provide the consumer with the information necessary to determine whether she

owes the debt. (Compl. � 16). Durham contends that Plaintiff's Complaint should be

dismissed because the letter explicitly includes the name of the creditor, which is the

only entity Durham identified in the letter. Thus, the identity of the creditor is clear to

even to the least sophisticated consumer. (Def.'s Br. 2-3). In support, Durham asserts

that it no longer has a copy of the letter it sent to Plaintiff, but attaches to its Motion an

example of the letter Plaintiff received. (Def. 's Br. 2, Ex. 1 ). The example letter

provided as follows:

Dear

RE: Outstanding Medical Invoice -The Bortolazzo Group LLC

Our File Number: Date of Service: Outstanding Balance:

FIRST NOTICE

Medical services have been provided to you as noted above and full payment has not been received for these services. Your account in the amount shown above has been forwarded to this office by the physician group for accountability. This outstanding balance is your responsibility.

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Please send payment to the address listed below so we may clear your debt from our records. Return this form with your full payment or pay online at www.Durham- Durham.com. Make your check or money order payable to Durham & Durham and upon receipt of your payment the account will be closed. At this time, no attorney with this firm has personally reviewed the particular circumstances of your account.

CON SUMER NOTICE PUR SUANT TO 15 U. S.C. SECTION l 692(G) You are hereby given notice of the following information concerning the above referenced debt: 1. Unless, within 30 days after receipt of this notice you dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the creditor and by this Firm. 2. If you notify us in writing within said 30 days that the debt, or any portion therefore is disputed, we will obtain verification of the debt, or a copy of any judgment against you, and we will mail such verification to you. 3. In addition, upon your written request within said 30 days, this Firm will provide the name and address of the original creditor if the original creditor is different from the current creditor. 4. This firm is attempting to collect a debt on behalf of the creditor and any information obtained will be used for that purpose ....

( Def.'s Ex. 1, Doc. 5-1, at 13).

II. LEGAL ANALYSIS

A. 12(b)(6) Motion to Dismiss Standard

Dismissal is warranted under Rule 12(b )( 6) if, assuming the truth of the factual

allegations of the plaintiffs complaint, there is a dispositive legal issue which precludes

relief or it is based on an indisputably meritless legal theory. Neitzke v. Williams, 490

U.S. 319, 326 (1989); Brown v. Crawford Cty., 960 F.2d 1002, 1009-10 (1 lth Cir.

1992). A Rule 12(b )( 6) motion to dismiss also tests the sufficiency of the complaint

against the legal standard set forth in Rule 8: "a short and plain statement of the claim

showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint

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"requires more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To state a claim with sufficient specificity requires that the complaint have enough

factual matter taken as true to suggest required elements of the claim. Watts v. Fla. Int' l

Univ., 495 F.3d 1289, 1296 (11th Cir. 2007); Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). Factual allegations in a complaint need not be detailed but "must be enough

to raise a right to relief above the speculative level . . . on the assumption that all the

allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at

555 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)).

Although matters outside the pleadings are normally not considered on a motion

to dismiss, Durham argues the Court may consider the example collection letter attached

to its motion to dismiss without converting the motion to a motion for summary

judgment. Fed. R. Civ. P. 56 ("If, on a motion under Rule 12(b)(6) . . . matters outside

the pleadings are presented to and not excluded by the court, the motion must be treated

as one for summary judgment under Rule 56."); Day v. Taylor, 400 F.3d 1272, 1276

(11th Cir. 2005); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369

(11th Cir. 1997); Prop. Mgmt. & Invs. v. Lewis, 752 F.2d 599, 605 (11th Cir. 1985);

Finn v. Gunter, 722 F.3d 711, 713 (11th Cir. 1984). The Court may consider an

extrinsic document if ( 1) it is central to a claim in the complaint, and (2) its authenticity

is unchallenged. Speaker v. U.S. Dep't of Health & Human Svcs. Ctrs. For Disease

Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (quoting SFM Holdings,

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Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010)); Bryant v.

Aargon Collection Agency, Inc., No. 17-CV-14096-MIDDLEBROOKS, 2017 WL

2955532, at* 1 n.2 (S.D. Fla. Jun. 30, 2017) (considering debt collection letter attached

to defendant's motion to dismiss because it was central to the claim and its authenticity

was undisputed). Here, the example collection letter is central to Plaintiffs claim. In

order to establish her FDCP A claim, Plaintiff must show Durham failed to identify the

creditor in its collection letter as required by Section 1692g(a)(2). The example

collection letter illustrates the manner in which Durham identified the creditor in its debt

collection letter, which is a key issue under Section 1692g(a)(2).1 See Day, 400 F.3d

at1275 (concluding that Court could consider standard form of contract on motion to

dismiss where contract was central to the claim); Horsley v. Feldt, 304 F.3d 1125, 1134

(11th Cir. 2002) (considering an Associated Press article on a motion for judgment on

the pleadings because the plaintiffs references to the document in his complaint were

1 The fact that Durham's Exhibit 1 is only an example of Durham's collection letter does not mean the example letter is not central to Plaintiffs claims. Courts have considered exemplar documents which are central to the complaint and whose authenticity is not disputed. For example, in Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005), the Eleventh Circuit concluded that it was proper to consider a form dealership contract attached to the motion to dismiss because its contents were not disputed and the plaintiffs' references to the dealership contract were necessary to allege an agency relationship between defendant and its independent dealers. Id. at 1276; see also Amento v. Celebrity Cruises Inc., No. 1:13-CV-23544-KMM, 2014 WL 11906598, at *3 (S.D. Fla. Oct. 30, 2014) (holding that an "exemplar" of a cruise ticket contract attached to the defendant's motion to dismiss could be considered because its forum selection clause and limitation period provision were central to the plaintiffs claims); Racca v. Celebrity Cruises, Inc., 606 F. Supp. 2d 1373, 1375 (S.D. Fla. 2009) (allowing an exemplar cruise passenger ticket to be attached and considered without converting a motion to dismiss into a motion for summary judgment).

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central to his defamation claim). Likewise, Plaintiff has not challenged the authenticity

of the example collection letter. Instead of challenging the example letter's authenticity,

Plaintiff quotes Durham's Exhibit 1 to support her argument that the collection letter she

received did not clearly identify the creditor as required by the FDCP A with the

language "RE: Outstanding Medical Invoice-The Bortolazzo Group, LLC." (Pl.'s Br.

7) (citing Def.'s Ex. 1).

B. Plaintiff's FDCPA Claims

Plaintiff alleges Durham violated Sections 1692e, 1692f, and 1692g(a)(2) of the

Fair Debt Collections Practices Act ("FDCPA") when it did not provide the identity of

the original or current creditor in an initial collection letter it sent to Plaintiff. (Compl.

iii! 11-15, 19-21); 15 U.S.C. §§ 1692e(2), (10), 1692f, 1692g(a)(2). Durham contends

Plaintiffs FDCPA claims should. be dismissed because it adequately identified the

creditor in its collection letter. In support, Durham argues the FDCP A does not require

that the collector place the label "original creditor" next to the name of the creditor, and

it may comply with the FDCPA even if it identifies the creditor implicitly. (Def. 's Br.

6, 7). Durham further points out that its collection letter explicitly identifies the creditor

because it states it is for an "Outstanding Medical Invoice - the Bortolazzo Group,

LLC," advised the consumer that medical services "have been provided to you as noted

above," and explained that the letter is for the "above referenced debt." (Def. 's Br. 2).

Furthermore, Durham contends Plaintiff fails to allege The Bortolazzo Group is not the

correct creditor in her Complaint, and courts have rejected claims where a debtor

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attempts to make a case that the name of the creditor is not clearly identified or is merely

technically incorrect. In response, Plaintiff contends that the language at the top of

Durham's collection letter, "RE: Outstanding Medical Invoice - The Bortolazzo Group,

LLC," is not sufficient to identify the name of the current creditor because she had no

way of knowing who The Bortolazzo Group was or even their relationship to the alleged

debt. (Pl. 's Br. 7). Additionally, Plaintiff argues Durham's additional statements in the

collection letter that "medical services have been provided" and "full payment has not

been received" are not sufficient to alert her to the fact that the original creditor is The

Bortolazzo Group because such phrases do nothing more than to alert her that Durham

is trying to collect some unknown debt and there is no mention that The Bartolazzo

Group was Plaintiffs medical Service Provider. Indeed, Plaintiff maintains she was

completely unaware of who The Bortolazzo Group was.

"Congress enacted the FDCP A 'to eliminate abusive debt collection practices by

debt collectors, to insure that 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."' Caceres v. McCalla

Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014) (quoting 15 U.S.C. § 1692e). A

plaintiff asserting an FDCPA claim pursuant to 15 U.S.C. §§ 1692e, 1692f, and 1692g

must plausibly allege ( 1) the defendant is a debt collector; (2) the challenged conduct

is related to debt collection; and (3) the defendant has engaged in an act or omission

prohibited by the FDCPA. Reese v. Ellis, Painter, Ratterree & Adams, 678 F.3d 1211,

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1216, 1218 (11th Cir. 2012); see also Miljkovic v. Sharfitz and Dinkin. P.A., 791 F.3d

1291, 1308 (11th Cir. 2015); Green v. Bank of Am. Corp., No. 1 :12-CV-4177-AT-AJB,

2013 WL 12101067, at *8 (N.D. Ga. Aug. 6, 2013). Durham does not contest for the

purposes of the motion to dismiss the first two elements. Therefore, the issue is whether

Plaintiffs complaint states a claim with regard to the third element.

Section 1692g(a)(2) of the FDCPA requires debt collectors to include "the name

of the creditor to whom the debt is owed" in a communication with a consumer in

connection with collection of a debt. 15 U.S.C. § l 692g(a)(2). Section l 692e prohibits

debt collectors from using a "false, deceptive, or misleading representation" of "the

character, amount, or legal status of any debt" or of "any services rendered or

compensation which may be lawfully received by any debt collector for the collection

of a debt." 15 U.S.C. § 1692e(2). It also prohibits the use of"any false representation

or deceptive means to collect or attempt to collect debt or to obtain information

concerning a consumer." 15 U.S.C. § l 692e(l 0). The absence of a statutory notice

requirement under Section l 692g(a) is actionable as deceptive under Section l 692e(l 0).

Caceres, 755 F.3d at 1303. Section 1692f prohibits the use of "unfair or

unconscionable" means to collect debt. 15 U.S.C. § l 692f. A determination that

conduct is unfair or unconscionable under Section l 692f also requires an inquiry into

deceptiveness. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1201 (11th Cir.

2010). Claims pursuant to 15 U.S.C. §§ 1692e, 1692f, and 1692g are analyzed under

the objective "least sophisticated consumer" standard. Id. at 1200-01 (applying least

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sophisticated consumer standard to Sections 1692f and 1692g claims); Bishop v. Ross

Earle & Bonan, P.A., 817 F.3d 1268, 1274, 1277 (11th Cir. 2016) (noting that least

sophisticated consumer standard applies to Section 1692e claim); Crawford v. L VNV

Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (overruled on other grounds by

Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1413 (2017)).

1. Plaintiff's Section 1692g Claim

As noted above, Section 1692g(a)(2) of the FDCPA requires debt collectors to

include "the name of the creditor to whom the debt is owed" in a communication with

a consumer in connection with collection of a debt. 15 U.S.C. § 1692g(a)(2). Section

1692g( a) provides in part:

Within 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 or the consumer has paid the debt, send the consumer a written notice containing-

(2) the name of the creditor to whom the debt is owed;

15 U.S.C. § 1692g(a) (emphasis added). Although the plain language of Section 1692g

merely requires that the letter "contain" the name of the creditor, this least sophisticated

consumer standard requires more. The key inquiry is whether the "least sophisticated

consumer would be deceived or misled by the communication at issue." LeBlanc, 601

F.3d at 1194. The Eleventh Circuit has instructed:

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 .... However, the test has an

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objective component in that r w lhile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness ... .

LeBlanc, 601 F.3d at 1194 (quotations omitted); see also Bishop, 817 F.3d at 1275 (11th

Cir. 2016). That being said, however, courts have generally held that debt collectors

may convey the identity of the creditor implicitly under Section 1692g. Ali v.

Pendergast & Assocs., No. 1: l 2-CV-02983-RWS-GGB, 2014 WL 11788874, at * 19

(N.D. Ga. Jun. 2, 2014) ("[C]ollection notices are not deceptive simply because certain

essential information is conveyed implicitly rather than explicitly.") (quoting Smith v.

Transworld Sys .. Inc., 953 F.2d 1025, 1028-29 (6th Cir. 1992)), adopted by Ali v.

Pendergast& Assocs., No. 1:12-CV-02983-RWS-GGB, 2014WL 11930613 (N.D. Ga.

July 1, 2014).

Applying the least sophisticated consumer standard to the requirement under 15

U.S.C. § 1692g(a)(2), Durham's letter adequately identifies the current creditor under

the least sophisticated consumer standard. First, the creditor, "The Bortolazzo Group,

LLC," is clearly identified in the subject line and is preceded by the phrase "Outstanding

Medical Invoice." See Demonte v. Client Servs .. Inc., No. 14-CV-14511, 2015 WL

12556159, at *3 (S.D. Fla. July 29, 2015) (finding that one reference to merchant in

header of letter located above the plaintiffs account number, which had also appeared

on creditor's regular billing statements, would not mislead the least sophisticated

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consumer as to the identity of the creditor)2; Ali, 2014 WL 11788874, at* 19 (granting

summary judgment in favor of defendant where creditor whose identity was undisputed

was mentioned once in subject line). Likewise, the header here is sufficient to alert the

least sophisticated consumer that The Bortolazzo Group, LLC is the creditor because it

provides not just the name of the creditor, "The Bortolazzo Group, LLC," but also the

nature of the alleged debt, "Outstanding Medical Invoice," the date of the service

triggering the debt, and the amount of the outstanding balance owed in the header of the

leader. (Def s Ex. 1 ).

The text of the letter's body below also clearly implies the creditor is a physician

group called "The Bortolazzo Group, LLC" within the body of the letter. See Talyor v.

MRS BPO, LLC, No. 2-17-CV-01733 (ARR) (RER), 2017 WL 2861785, at *3

2 Plaintiff argues that Demonte is distinguishable because the issue was raised before the court on a motion for summary judgment rather than a motion to dismiss, and a motion for summary judgment is a much higher standard for the non-moving party to meet. (Pl.'s Br. 8). The court in Demonte, however, clarified as a matter of law that failing to explicitly label the creditor is not a per se violation of § 1692g(a)(2). The facts of this case are more favorable for Durham than the facts were for the defendant in Demonte because in Demonte, the defendant did not include the technically correct name of the creditor in the collection letter. In that case, Credit First National Association (CFNA), the creditor, issued a Firestone-Tiers Plus credit card to Plaintiff. The defendant debt collector listed the creditor as "Firestone-Tires Plus" in the subject line of the letter. The court held the letter's reference to the merchant, Firestone, was not misleading even though it was technically incorrect because the least sophisticated consumer would conclude the letter was in regard to his or her CFNA/Firestone-Tires Plus Card. Id. at* 3. Like the defendant in Demonte whose reference to a merchant whose name was connected to the credit card provided enough information to imply that the company who issued the card was the creditor, Durham's references here to a "physician group" and "medical services" in the body of the letter were sufficient to imply that The Bortolazzo Group was the creditor.

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(E.D.N.Y. July 5, 2017) (holding that "RE: CHASE BANK USA N.A." in the letter

header along with two references to Chase Bank in the body of the letter was sufficient

to imply to the least-sophisticated consumer that Chase Bank was the creditor);

Meininger v. GC Servs. Ltd. P'ship (In re Hathcock), 437 B.R. 696, 703-04 (Bankr.

M.D. Fla. 2010) (finding that five allusions to the original creditor gave sufficient notice

as to the identity of the creditor). The text here refers the reader repeatedly to the header

above to imply that "The Bortolazzo Group" is Plaintiffs creditor. The first sentence

in the body of the letter, which states "medical services have been provided to you as

noted above and full payment has not been received for these services," implies the

creditor is the medical service provider cited in the header which references an

"Outstanding Medical Invoice - The Bortolazzo Group LLC." (Id.). Additionally, this

sentence implies the creditor is a medical provider and the medical provider has not yet

received payment. The body of the letter also confirms that Plaintiff is responsible for

the debt, that the medical provider is a physician group, and that the relationship

between the physician group and Durham is one between creditor and debt collector.

Furthermore, the following sentences plainly state it is Plaintiff who owes the

"outstanding balance" for unpaid medical and that the creditor is a physician group. The

letter states, "Your account in the amount shown above has been forwarded to this office

by the physician group for accountability" and that "[t]his outstanding balance is your

responsibility." (Id.) (emphasis added). The second sentence confirms that Plaintiffs

alleged creditor is a "physician group" and that Durham, referred to as "this office," is

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attempting to collect on the debt. The designation "group" and repeated references to

the header above together clearly imply to the reader that the medical provider to whom

an "outstanding medical invoice" is owed is a physician group called "The Bortolazzo

Group, LLC."

Plaintiff argues the letter fails Section l 692g's requirements on its face because

"merely including the current creditor's name in a debt collection letter, without more,

is insufficient to satisfy 15 U.S.C. § l 692g(a)(2)." (Pl. 's Br. 8) (quoting McGinty v.

Profl Claims Bureau, Inc., No. 15-CV-4356 (SJF)(ARL), 2016 WL 6069180, at *4

(E.D.N. Y. Oct. 17, 2016). Plaintiff relies on two unpublished decisions from the Eastern

District of New York that also involved alleged violations of Section l 692g(a)(2) in

which the court found a single mention of the creditor in the subject line of a debt

collection letter insufficient under the "least sophisticated consumer" standard. Plaintiff

urges the court to adopt similar reasoning here. Both cases, however, are distinguishable

from the case at bar. Plaintiff first argues this Court should follow the reasoning of the

Eastern District of New York in McGinty v. Profl Claims Bureau, Inc., No. 15-CV-

4356 (SJF)(ARL), 2016 WL 6069180 (E.D.N.Y. Oct. 17, 2016). Plaintiff contends that

in McGinty, the plaintiffs received collection letters nearly identical to the collection

letter Plaintiff received in this case, and the court found that merely including the

creditor's name in the collection letter, without more, did not clearly and effectively

convey the creditor's role in connection with the debt. (Pl. 's Br. 8). Contrary to

Plaintiffs contention, the letter in that case was not similar to this case because it failed

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to include further explanation necessary to identify the creditor. The defendant in

McGinty sent two separate debt collection letters to the plaintiffs with similar captions

in the upper-right-hand comer:

Re: ST CATHERINE OF SIENNA

Patient Name: CRYSTAL PASKIEWICZ

Service Date: 06/03/13

Re: NSLIJ PHYSICIANS - DEPT OF ORTHOPEDIC SURGERY

Patient Name: KERRI LYNN MGGINTY

Service Date: 01/30/14

Id. at *2. The body of the letter merely stated, "The above referenced account has been

referred to our offices for collection," which the court held failed to make clear on

whose part the debt collector was acting. Id. at *8-9. Acknowledging that a debt

collection letter may explicitly or implicitly identify the creditor, the court in McGinty

ruled that "merely including the debtor's name in the caption of a debt collection letter

is not, without more explanation, sufficient to satisfy 15 U.S.C. § 1692g(a)(2)." Id. at

*8 (emphasis added) (quoting Datiz v. Int'l Recovery Assocs., Inc., No. 15-CV-3549,

2016 U.S. Dist. LEXIS 102695, at *29 (E.D.N.Y. Aug. 4, 2016). Unlike the letter in

McGinty, which failed to include information in the body of the letter which would

allow the consumer to deduce that the names in the caption of the letter were the

plaintiff's creditors, the letter here refers to "medical services" that are "noted above,"

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and explains that an outstanding debt was forwarded to Durham "by the physician

group." (Def.'s Ex. 1). Durham's letter also makes it clear that Durham's role was as

the collector and was not Plaintiffs creditor as it makes clear that the firm is "attempting

to collect a debt on behalf of the creditor." (Def. 's Ex. 1 ). Despite Plaintiffs argument

that there is no connection between the descriptive phrases in the first paragraph of the

letter and the name, "The Bortolazzo Group," the letter repeatedly refers the reader to

the letter's heading. Taken together, the text here is sufficient to imply that the creditor

is a medical service provider, the medical service provider is a physician group, and the

group is called, "The Bortolazzo Group, LLC."

Plaintiff contends that in Beltrez v. Credit Collection Servs., Inc., No. CV 14-

7303 (LDW) (AKT), (E.D.N.Y. Nov. 25, 2015) (LEAGLE), the defendant provided a

letter similar to the one at issue here, and the court found the least sophisticated

consumer would be confused as to the identity of the creditor because the creditor was

referenced only once in a separate box near the top of the letter. (Pl. 's Br. 11; Pl. 's Ex.

2, Doc. 6-2). The facts ofBeltrez are further distinguishable. In that case, the court held

a caption that included "with regard to" "VERlZON" in the subject line was vague

enough to confuse the least sophisticated consumer as a matter of law, since there were

37 Verizon entities registered in the state of New York. Id. at� 2. Unlike the plaintiff

in Beltrez, who argued the least sophisticated consumer would be confused because the

letter failed to specify to which Verizon entity the debt was owed, Plaintiff here does not

allege that reference to "The Bortolazzo Group" is easily confusing due to the

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prevalence of similarly named businesses.

Plaintiff alleges she had never heard of The Bortolazzo Group. With this in mind,

Plaintiff argues she had no way of knowing who The Bortolazzo Group was in

relationship to the alleged debt or their affiliation with Durham. Plaintiff also argues the

letter only showed Durham was trying to collect a debt. (Pl. 's Br. at 7). As discussed

above, however, the letter included enough information to lead even the least

sophisticated consumer to understand that the Bortolazzo Group was the creditor and

Durham was trying to collect the debt on its behalf. Thus, even construing all facts in

the pleadings in Plaintiffs favor, the court would not be able to find a violation of

Section 1692g( a)(2) because the "least sophisticated consumer" standard is an objective

standard. See LeBlanc v. Unifund CCR Partners, 601F.3d 1185, 1194 (11th Cir. 2010).

Plaintiffs understanding of the letter is not in issue and would lead to Durham's liability

for a bizarre or idiosyncratic interpretations of the collection notice that the least

sophisticated consumer standard is meant to avoid. LeBlanc, 601 F.3d at 1194

(explaining that the least sophisticated consumer standard "prevents liability for bizarre

or idiosyncratic interpretations of collection notices by preserving a quotient of

reasonableness"); see also Macelus v. Capital Collection Serv., No. 17-2025 (RBKJJS),

2017 WL 5157389, at *2-3 (D.N.J. Nov. 7, 2017) ( explaining that although letter did not

explicitly identify the creditor, it was clear who the creditor was because in the upper

right comer of the letter, it indicated that "Account for Advanced Endoscopy & Surgical

Ctr, LLC," the letter made clear it was an attempt to collect a debt by the debt collector,

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and stated how much money was sought).

2. Plaintiffs Section 1692e Claims

Plaintiffs claims pursuant to Section 1692e fair no better. First, Plaintiffs

Complaint does not clearly impart how Durham allegedly violated Section 1692e, and

stated only that "Defendant's debt collection efforts attempted and/or directed towards

Plaintiff violate various provisions of the FDCPA, including but not limited to 15 U.S.C.

§ § 1692e, 1692e(2), 1692e(l 0), 1692f, and 1692g. Thus, this Court infers that Plaintiff

is contending that Durham's alleged failure to identify the creditor also violated Sections

1692e(2) and 1692e( 10). Section 1692e(2) prohibits debt collectors from using a "false,

deceptive, or misleading representation" of"the character, amount, or legal status of any

debt" or of"any services rendered or compensation which may be lawfully received by

any debt collector for the collection of a debt." 15 U.S.C. § 1692e(2). Section

1692e(l 0) prohibits the use of "any false, deceptive, or misleading representation[ s] or

means in connection with the collection of any debt." 15 U.S.C. § 1692e(l 0). As

discussed above, under the least sophisticated consumer standard, Durham's letter

provided sufficient information to imply the amount of the debt and the relationship

between Durham the debt collector and The Bortolazzo Group, the creditor, with regard

to the debt. Having determined that Plaintiff fails to state a claim under the least

sophisticated consumer standard pursuant to Section 1692g(a)(2), the Court finds

Plaintiff fails to state a claim under Section 1692e. Thus, the letter was not false,

deceptive, or misleading with regard to the character, amount, and legal status of the

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debt or services rendered by the debt collector.

3. Plaintiffs l 692f Claim

Plaintiff also failed to specifically impart how Durham's collection efforts

violated Section l 692f. Thus, this Court infers that Plaintiff is arguing Durham also

violated Section 1692£ by failing to identify the creditor. Section l 692f prohibits the use

of "unfair or unconscionable" means to collect debt. 15 U.S.C. § l 692f. Although

"unfair" and "unconscionable" are vague terms, courts inquire as to whether conduct is

deceptive to determine whether conduct is unfair or unconscionable. LeBlanc, 601 F .3d

1201 . Having concluded Durham's conduct did not violate Section l 692g( a )(2) and was

thus not deceptive or misleading, the Court finds in the absence of further factual

allegations with regard to Section l 692f that Plaintiff fails to state a claim pursuant to

Section l 692f.

CONCLUSION

For the foregoing reasons, this Court RECOMMENDS that Durham's Motion

to Dismiss be GRANTED. (Doc. 5). As this is a final Report and Recommendation and

there are no other matters pending before this Court, the Clerk is directed to terminate

the reference to the undersigned.

SO REPORTED AND RECOMMENDED, this _ll_ day ofNovember, 2017.

ls/LINDA T. WALKER LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE

18


Documents

Case 1:17-cv-01249-AT Document 11 Filed ... - images.law.com · contract attached to the motion to dismiss because its contents were not disputed and the plaintiffs' references to