Smith v. Cohn
Opinion of the Court
Plaintiff James A. Smith ("Smith" or "Plaintiff") has filed this class action lawsuit
BACKGROUND
This Court accepts as true the facts alleged in Plaintiff's complaint. See Aziz v. Alcolac, Inc. ,
*757On November 18, 2005, you executed a Deed of Trust and Note secured by the above referenced property, and borrowed money in connection with a loan made by Mortgage Lenders Network USA, Inc..[sic ] The current owner of the note is U.S. Bank National Association, as Trustee, for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2006-EMX1, and the current servicer of the above-referenced loan is Wells Fargo Bank, N.A..[sic ] The loan has been referred to this office for legal action based upon a default under the terms of the loan agreement....
Upon your written request within the thirty (30) day period, this office will provide the name and address of the original creditor if different from the current creditor.
IF YOU ARE A DEBTOR, OR AN ATTORNEY REPRESENTING A DEBTOR, THIS COMMUNICATION IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED HEREBY WILL BE USED FOR THAT PURPOSE.
(ECF No. 1-1.) The Letter was the first communication that Smith received from Cohn, and other than an additional letter of the same date concerning the Servicemembers Civil Relief Act, Smith did not receive any other communication from Cohn within five days of the Letter. (ECF No. 1 at ¶¶ 24-25.)
Smith claims that the Letter violated 15 U.S.C. § 1692g(a)(2) of the Fair Debt Collection Practices Act ("FDCPA"), because it "fail[ed] to clearly specify, in a manner in which the least sophisticated consumer could understand, the name of the creditor to whom the Debt was owed." (Id. at ¶ 28.) Smith's Complaint states that he was confused about which one of the entities listed in the Letter was the creditor owed the debt. (Id. at ¶ 26.) The Complaint further states that there were five entities listed in the Letter.
Per the direction of the Letter, Smith wrote a letter to Cohn dated December 7, 2016, in order to verify the debt. (Id. at ¶ 36.) Subsequently, Smith filed this action alleging that the Letter violates the FDCPA, because the Letter did not contain the proper disclosures required by 15 U.S.C. § 1692g(a)(2). (Id. at 3.) Specifically, Smith argues that the Letter failed to specify the name of the creditor to whom the debt is owed, and Cohn did not provide such disclosures within five days after. (Id. )
STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City Of Charlottesville ,
Under limited exceptions, a court may consider documents beyond the complaint without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Baltimore ,
DISCUSSION
The Fair Debt Collection Practices Act ("FDCPA") "protects consumers from abusive and deceptive practices by debt collectors, and protects non-abusive debt collectors from competitive disadvantage." Ukaegbu v. Select Portfolio Servicing, Inc. , No. PWG-16-3415,
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 *759is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing ... the name of the creditor to whom the debt is owed.
15 U.S.C. § 1692g(a) (2012). No subsequent communication was sent to Smith following the Letter. Therefore, the sole issue is whether the Letter met the standard of 15 U.S.C. § 1692g(a)(2).
Courts interpret the FDCPA using the least sophisticated consumer standard.
The use of a test evaluating the understanding of a least sophisticated consumer is intended to ensure that "the gullible as well as the shrewd" are not deceived by communications from a debt collector. Natl. Fin. Servs., Inc.,98 F.3d at 136 (citation omitted). Although the FDCPA protects uninformed consumers, the standard employed nevertheless protects creditors from "liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care."Id. Accordingly, courts must remain mindful not to "conflate lack of sophistication with unreasonableness." Ellis v. Solomon & Solomon, P.C. ,591 F.3d 130 , 135 (2d Cir. 2010).
Ramsay ,
Though the FDCPA does not necessarily require specific language to communicate the identity of the creditor to whom the debt is owed, such information "must be conveyed effectively to the debtor." Miller v. Payco-Gen. Am. Credits, Inc. ,
*760McMahon v. LVNV Funding, LLC ,
First, Smith's Complaint contends that the five entities listed in the Letter would ultimately confuse the reader as to which entity is the creditor to whom the debt is owed. (ECF No. 1 at ¶¶ 28-32.) The Letter contains the following language as to the creditor to whom the debt is owed:
[Y]ou executed a Deed of Trust and Note secured by the above referenced property, and borrowed money in connection with a loan made by Mortgage Lenders Network USA, Inc..[sic ] The current owner of the note is U.S. Bank National Association, as Trustee, for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2006-EMX1, and the current servicer of the above-referenced loan is Wells Fargo Bank, N.A[.]
(ECF No. 1-1.) Fundamentally, the parties dispute whether the above text lists four entities or five. (ECF No. 9 at 6-9; ECF No. 11 at 8-13.) Cohn asserts that "U.S. Bank National Association, as Trustee, for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2006-EMX1," is one entity, not two. (ECF No. 9-1 at 6.)
Both parties rely on Janetos v. Fulton Friedman & Gullace, LLP ,
If a letter fails to disclose the required information clearly, it violates the Act, without further proof of confusion ... When § 1692g(a) requires that a communication include certain information, compliance demands more than simply including that information in some unintelligible form. Otherwise, as we have said, "the collection agency could write the letter in Hittite and have a secure defense." Chuway v. National Action Financial Services, Inc.,362 F.3d 944 , 948 (7th Cir. 2004). To satisfy § 1692g(a), the debt collector's notice must state the required information "clearly enough that the recipient is likely to understand it."Id. ; see also Bartlett v. Heibl,128 F.3d 497 , 500 (7th Cir. 1997) (debt collector may not defeat the Act's purpose by "making the required disclosures in a form or within a context in which they are unlikely to be understood by the unsophisticated debtors who are the particular objects of the statute's solicitude").
*761Cohn asserts that the company "clearly identified the owner of the note, which is the creditor to whom the debt is owed," therefore, the Letter would not confuse the least sophisticated consumer. (ECF No. 9-1 at 2.) The very fact that the parties dispute how many entities are included in the list of entities that purportedly communicates the identity of the creditor to whom the debit is owed portends that there are multiple interpretations, at least one of them inaccurate, of the content of the Letter. If the parties here dispute the number of actual entities within the Letter, what hope does the least sophisticated consumer have to accurately determine which entity is the creditor? The FDCPA requires that the identity of the creditor to whom the debt is owed be communicated effectively to the least sophisticated consumer, and here, there is at least a facially plausible claim that Cohn's Letter did not meet such a standard.
Second, vague language in the Letter potentially further confuses the identity of the creditor to whom the debt is owed, or at least does not clarify the identity of the creditor. The Letter states, "[t]he loan has been referred to this office for legal action based upon a default under the terms of the loan agreement." (ECF No. 1-1.) While the reference to "this office" is not misleading given that the Letter clearly was sent from Cohn per the header of the Letter and signature, the reference to "[t]he loan" does not help to identify the creditor to whom the debt is owed.
Further, the memo line of Cohn's Letter only includes vague references to file numbers, "Loan # 1115040410" and "Our File # 449614," that do not link the account numbers to a particular entity that could be identified as the creditor to whom the debt is owed. (ECF No. 1-1.) (See Romano v. Schachter Portnoy, L.L.C., No. 17-CV-1014(ARR)(CLP),
CONCLUSION
For the reasons stated above, Cohn's Motion to Dismiss (ECF No. 9) is DENIED.
A separate Order follows.
Smith brings this class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) on behalf of himself and those similarly situated persons with a Maryland address who received an initial debt collection letter from Defendant Cohn that does not specify the name of the creditor to whom the debt was owed. (ECF No. 1 at 7-8.)
As discussed infra at 760-61, Cohn contends there are only four entities listed in the Letter. (ECF No. 9-1 at 6.)
As a threshold matter, the parties dispute whether the interpretation of the least sophisticated consumer is a question of law or fact. The Fourth Circuit generally treats the test as an objective test that presents a question of law. "Given the objective nature of this inquiry, a district court's application of the least sophisticated consumer test ordinarily presents a question of law." Ramsay v. Sawyer Prop. Mgmt. of Maryland LLC ,
Reference
- Full Case Name
- James A. SMITH v. COHN, GOLDBERG & DEUTSCH, LLC
- Cited By
- 6 cases
- Status
- Published