Silva v . National Telewire Corp. CV-99-219-JD 01/03/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael S . Silva, on behalf of himself and all others similarly situated

v. Civil N o . 99-219-JD Opinion N o .

National Telewire Corporation d/b/a Priority Service Network

O R D E R

The plaintiff, Michael S . Silva, brings an action pursuant to the Fair Debt Collection Practices Act,

et seq. (“FDCPA”), alleging that the defendant, Priority Service Network (“PSN”), has violated the FDCPA by failing to provide a validation notice and by mailing letters implying a false sense of urgency. See 15 U.S.C.A. §§ 1692g(a), 1692e. PSN moves to dismiss the complaint, contending that Silva has not properly alleged that it is a “debt collector” within the meaning of the FDCPA. For the reasons that follow, the motion is denied.

Standard of Review

“After the pleadings are closed but within such time as not

to delay the trial, any party may move for judgment on the pleadings.”1 Fed. R. Civ. P. 12(c). When considering a motion

for judgment on the pleadings, the “court must accept all of the

nonmoving party’s well-pleaded factual averments as true and draw

all reasonable inferences in his favor.” Feliciano v . Rhode

Island,

(1st Cir. 1998). Judgment on the

pleadings is not appropriate “‘unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.’” Santiago de Castro v .

Morales Medina,

(1st Cir. 1991) (quoting

Rivera-Gomez v . de Castro,

(1st Cir. 1988)).

Background2

Silva alleges that in June of 1998 he received a “NOTICE OF PERSONAL DELIVERY TELEGRAM” from the defendant, PSN, that was sent in an effort to collect his Sears bill. The notice said National Telewire had “AN IMPORTANT TELEGRAM MARKED FOR VOICE DELIVERY TO YOU” and instructed Silva to call the toll free number “immediately” to receive the message. Silva had his

1 Although PSN brings its motion pursuant to Fed. R. Civ. P. 12(b)(6), because it has filed its answer, the motion is more properly considered as one for judgment on the pleadings. 2 The background information is taken from the allegations in the complaint and the copies of PSN’s promotional materials and the notice sent to Silva that are attached to the complaint.

2 attorney call. Silva contends that PSN captures the telephone numbers of consumers who call the toll-free number provided and provides the numbers to Sears for use in their collection efforts.

Silva further alleges that PSN has developed and uses the

Telewire Electronic Message service for debt collection. PSN advertises its service, stating: “Thousands of different businesses and organizations have successfully used Telewire High Impact Messages t o : Collect overdue accounts [and for other listed purposes].” The advertising says that the messages “get opened because they look urgent and important.” PSN further promotes its service by saying: “Give us the name and addresses. Telewire does the rest. . . . When your customer calls our network center, the call can be patched to your collection department for immediate direct action.” Silva alleges, on information and belief, that Sears contracted with PSN to use its service for collection of its bills.

Discussion

The FDCPA, in parts pertinent to Silva’s claims, requires a

debt collector to send the consumer written notice containing

specific information either with the initial communication or

within five days of i t . See § 1692g(a). The FDCPA also

3 prohibits false or misleading representations used by a debt

collector in connection with collecting debts, including false or

deceptive means to obtain information concerning a consumer. See

§ 1692e, 1692e(10). PSN contends that Silva fails to state a

claim under the FDCPA by failing to sufficiently allege that it

is a debt collector as defined in § 1692a(6). PSN emphasizes

that its on-line promotional package offers other uses for the

service, in addition to debt collection, and argues that because

of the limited nature of its debt collection services, it is not

a debt collector.

The term “debt collector” is defined by the FDCPA as “any

person who uses any instrumentality of interstate commerce or the

mails in any business the principal purpose of which is the

collection of any debts, or who regularly collects or attempts to

collect, directly or indirectly, debts owed or due or asserted to

be owed or due to another.” § 1692a(6). The definition of debt collector reaches beyond those engaged exclusively in the

business of debt collections and includes, for example, lawyers

who regularly engage in debt collection through litigation. See

Heintz v . Jenkins,

(1995). In determining

whether or not a defendant is a debt collector within the meaning

of the FDCPA, courts have focused on the nature of the

defendant’s activities. See Romine v . Diversified Collection

4 Servs., Inc. ,

(9th Cir. 1998). Several courts have held that those who serve as mere messengers of debt collection notices, without any active participation, are not debt collectors within the meaning of the FDCPA. See, e.g., Aquino v . Credit Control Servs.,

(N.D. Cal. 1998); Laubach v . Arrow Serv. Bureau, Inc.,

(N.D. Ill. 1997); Trull v . Lason Sys., Inc.,

(N.D. Ill. 1997). In contrast, when a defendant’s “activities go beyond mere information gathering or message delivery,” such as obtaining and forwarding telephone numbers “by conveying a sense of urgency,” those are activities “that the FDCPA was designed to deter.” Romine,

(holding Western Union was “debt collector” based upon its telegram service, developed for the collections industry, that stimulated responses to apparently urgent telegram notices in order to capture debtor’s telephone number for collection service).

PSN distinguishes Romine on the ground that the Western Union service was aimed at debt collection, while PSN has not focused its promotional efforts toward debt collectors and offers the same service for other users. Silva has alleged, however, that PSN developed and uses the Telewire service for debt

collection. The references to debt collection in the promotional materials sufficiently support Silva’s allegations to allow the

5 claims to survive the motion to dismiss. PSN’s status as a debt collector, based on the nature and extent of its debt collection activities, may be revisited, if appropriate, through a motion for summary judgment.

Conclusion For the foregoing reasons, the defendant’s motion to dismiss

(document n o . 13) is denied.

SO ORDERED.

Joseph A . DiClerico, J r . District Judge

January 3 , 2000

cc: Christopher J. Seufert, Esquire O . Randolph Bragg, Esquire Walter D. LeVine, Esquire Jeffrey B . Osburn, Esquire

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