Berger ex rel. Berger v. Northland Group, Inc.
Berger ex rel. Berger v. Northland Group, Inc.
Opinion of the Court
MEMORANDUM AND ORDER
I. Introduction
The basis for this case rests on four letters sent by Defendant Northland Group, Inc. to Marilyn Berger roughly between August 15 and November 16, 2010. Defendant is a debt collector and sent the letters in an attempt to collect on a debt allegedly owed by Marilyn Berger. Plaintiff Karen Berger filed her Complaint and Request for Jury Trial [# 1] on November 14, 2011, on behalf of Marilyn Berger, for violations of the Fair Debt Collection Practices Act (“FDCPA”). Defendant filed Defendant’s Motion for Judgment on the Pleadings or Alternatively for Summary Judgment [# 10] on January 31, 2012. The court held a hearing on the motion on August 13, 2012. After consideration of the arguments presented by both Plaintiff and Defendant, for the reasons stated below, Defendant’s Motion for Judgment on the Pleadings or Alternatively for Summary Judgment [# 10] is ALLOWED.
II. Background
Plaintiff brings this suit on behalf of Marilyn Berger, an eighty-three year old disabled woman.
The next letter Marilyn Berger received regarding this debt is dated August 15, 2010 and is from Defendant Northland Group Inc.
On November 14, 2011, Plaintiff filed a Complaint and Request for Jury Trial [# 1]. Plaintiff brings claims against Defendant for violations of 15 U.S.C. §§ 1692e(2)(A), 1692e(2)(B), 1692e(10), 1692e(ll), and 1692f(l). Defendant filed its Answer [# 5] on January 27, 2012, and filed its Amended Answer [# 6] on January 31, 2012.
Defendant also filed Defendant’s Motion for Judgment on the Pleadings or Alternatively for Summary Judgment [# 10] on January 31, 2012. Plaintiff filed Plaintiffs Opposition to Defendant’s Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) OR [sic] Alternatively for Summary Judgment Pursuant to Fed. R.CÍV.P. 56 [# 13] on February 21, 2012. Defendant filed a Reply Memorandum of Law in Support of Defendant’s Motion [# 21] on March 2, 2012. The court held a hearing on the motion on August 13, 2012, and took the matter under advisement.
III. Discussion
A. Legal Standard
Under Fed.R.Civ.P. 12(c): “After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” It is clear that “[a] motion for judgment on the pleadings is treated much like a Rule 12(b)(6) motion to dismiss.”
B. Analysis
1. Claims Based on the Content of the Collection Letters
Whether a collection letter violates the FDCPA is a question of law.
Plaintiff here has brought claims alleging that Defendant’s letters violated 15 U.S.C. §§ 1692e(2)(A), 1692e(2)(B), 1692e(10), and 1692f(l). The pertinent subsections of 15 U.S.C. § 1692e read:
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(2) The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt....
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.25
15 U.S.C. § 1692f, in relevant part, reads:
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized*63 by the agreement creating the debt or permitted by law.26
As an initial matter, only Defendant’s letter dated November 16, 2010 falls within the one-year statute of limitations under the FDCPA.
Even reading the pleadings in the light most favorable to the Plaintiff, Defendant’s letter dated November 16, 2010 cannot be characterized as a plausible violation of the subsections of the FDCPA stated above. The body of the letter in question reads:
Northland Group, Inc., [sic] helps customers resolve their debt by offering settlement and payment plans. We are highly motivated to work with you to resolve this past due account. Make us a reasonable offer to resolve your account, and we will take it to our client for approval. We will contact you if your offer is approved.28
The letter includes a website address, a customer service telephone number, a mailing address, and hours of operation. It also includes a statement that it is an attempt by a debt collector to collect a debt. None of this content is inherently false, deceptive, or misleading. It is, by contrast an attempt to explain to the debt- or, Marilyn Berger, that she owes a debt, that she has certain rights, and that she can contact Defendant if she would like more information or to dispute the debt.
Plaintiff has offered no evidence or argument to suggest exactly why this letter, and the actions taken by Defendant are false, deceptive, or misleading. To find that such a letter from a collection agency — without any evidence suggesting that it is false, deceptive, or misleading — violates the FDCPA would severely limit the contact that collection agencies could have with debtors. This is not in line with the spirit of the least sophisticated debtor standard, which is meant to protect naive consumers, but not idiosyncratic interpretations of communications. Asking the court to read the letter dated November 16, 2010 as false, misleading, or deceptive without pleading facts to plausibly demonstrate how it is any of those things is unreasonable. Furthermore, Plaintiff has offered no evidence as to why sending a letter asking a debtor to make a reasonable offer qualifies as unconscionable activity under 15 U.S.C. § 1692f. The court, therefore, finds that as a matter of law, Defendant’s letter dated November 16, 2010 does not violate the FDCPA.
2. Claim Based on Defendant’s Website
Plaintiff also argues that Defendant violated 15 U.S.C. § 1692e(ll) by failing to disclose on its website that it is a debt collector
The court finds that in this context, Defendant’s website does not qualify as a subsequent communication but is rather part of the same communication as the November 16, 2010 letter sent to Marilyn Berger. The intent behind 15 U.S.C. § 1692e(ll) is to make it apparent to debtors that the request for payment that they receive is from a debt collector. The November 16, 2010 letter includes Defendant’s website address at the top lefthand corner of the page as part of the header. The letter also includes the following sentence: “If you want to pay your bill online, please go to www.payments2northland. com.”
Marilyn Berger would have reached Defendant’s website, if at all, after being directed there by the letter.
The court also notes that the Complaint and Request for Jury Trial fails to allege that Defendant’s website lacks the required language under 15 U.S.C. § 1692e(ll). The Complaint and Request for Jury Trial states: “The so-called home page of the Website does not contain any of the required notices required by the FDCPA, including but not limited to the indication that the communication is with a debt collector.”
IV. Conclusion
For the reasons stated above, Defendant’s Motion for Judgment on the Pleadings or Alternatively for Summary Judgment [# 10] is ALLOWED. Plaintiffs Complaint and Request for Jury Trial [# 1] is DISMISSED. This case is CLOSED.
IT IS SO ORDERED.
. Compl. and Req. Jury Trial [# 1] ¶ 1; Aff. of Karen Berger [# 15-1] ¶ 1.
. Compl. and Req. Jury Trial ¶¶ 9, 14, 17, 21, 24, 27; Aff. of Karen Berger [#15-1] ¶ 2.
. Compl. and Req. Jury Trial, ex. # 1-1.
. Compl. and Req. Jury Trial, ex. # 1-1.
. Compl. and Req. Jury Trial, ex. # 1-2.
. Compl. and Req. Jury Trial, ex. # 1-3.
. Compl. and Req. Jury Trial, ex. # 1-3.
. Compl. and Req. Jury Trial, ex. # 1-3.
. Compl. and Req. Jury Trial, ex. # 1-5.
. Compl. and Req. Jury Trial, ex. # 1-6.
. Compl. and Req. Jury Trial, ex. # 1-6.
. Compl. and Req. Jury Trial, ex. # 1-6.
. Compl. and Req. Jury Trial, ex. # 1-7.
. Compl. and Req. Jury Trial, ex. # 1-7.
. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).
. R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (quoted in Perez-Acevedo, 520 F.3d at 29).
. Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
. Cordero-Hernandez v. Hemandez-Ballesteros, 449 F.3d 240, 244 n. 3d (1st Cir. 2006).
. 15 U.S.C. §§ 16921.
. 15 U.S.C. §§ 1692k(d).
. Compl. and Req. Jury Trial, ex. # 1-7.
. Compl. and Req. Juiy Trial ¶ 38.
. 15 U.S.C. § 1692e(ll).
. Chiang v. Verizon New England Inc., 595 F.3d 26, 34 (1st Cir. 2010).
. Martin v. Sands, 62 F.Supp.2d 196, 199 (D.Mass. 1999).
. Schaefer v. ARM Receivable Mgmt., Inc., No. 09-11666-DJC, 2011 WL 2847768, at *2 (D.Mass. July 19, 2011).
. Id. (quoting Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000)).
. 15 U.S.C. § 1692e (2006).
. Plaintiff does not state this basis for her allegation in her Complaint and Request for Jury Trial. Defendant assumes that this is the basis of Plaintiff's allegation in its Defendant’s Motion for Judgment on the Pleadings or Alternatively for Summary Judgment, and Plaintiff does not argue otherwise.
. Compl. and Req. Jury Trial, ex. # 1-7.
.Plaintiff does not provide any facts demonstrating that Marilyn Berger viewed the website at all, let alone independently of being directed there from the letters she received from Defendant.
. Compl. and Req. Jury Trial II20 (emphasis added).
Reference
- Full Case Name
- Karen BERGER as next friend of Marilyn A. Berger v. NORTHLAND GROUP, INC.
- Cited By
- 2 cases
- Status
- Published