Cortez v. Foster & Garbus, LLP
Cortez v. Foster & Garbus, LLP
Opinion of the Court
*260Cristian D. Cortez brings this action against Foster & Garbus, LLP, a debt collector, seeking damages for violations of the Fair Debt Collection Practices Act ("the FDCPA"). The defendant moves for summary judgment. For the following reasons, the defendant's motion is denied, and the Court enters summary judgment in favor of the plaintiff on the issue of liability.
I.
Plaintiff incurred a debt to Discover Bank, which retained the defendant to collect the debt. The defendant mailed the plaintiff several debt collection notices setting forth reduced-rate settlement offers. The specific notice challenged in the complaint is dated February 2, 2017. That notice set forth three options for how the plaintiff could pay off his debt, which at the time totaled $ 13,457.65. The notice stated, in part:
This office has been authorized to advise you that a settlement of the above account can be arranged. You are being offered a substantial discount off the current balance due. You may choose one of the three payment options as follows:
A. One payment of $ 5,383.06, which we shall expect by February 24, 2017.
B. Two payments of $ 3,364.42 each, totaling $ 6,728.84[,] which we shall expect by February 24, 2017, and March 24, 2017.
C. Three payments of $ 2,691.53 each, totaling $ 8,074.59, which we shall expect by February 24, 2017, March 24, 2017, and April 24, 2017.
Dkt No. 1, Ex. 1. Though the notice did not explicitly say so, if the plaintiff had paid those amounts by the specified dates, the debt would not accrue interest or fees. The notice also did not mention that if the plaintiff did not make a payment by February 24, 2017, the debt would start accruing interest and/or fees. Subsequent similar notices reflected higher "balance due" amounts and offering settlements for higher amounts. The plaintiff filed his complaint on November 8, 2017, claiming that the February 2, 2017, notice violated the FDCPA because it failed to inform consumers about the potential interest and/or fees.
II.
Under the FDCPA, "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. That includes "the false representation of the character, amount, or legal status of any debt." Id. § 1692e(2)(A). The FDCPA is a consumer protection statute and, therefore, courts must construe it broadly. Avila v. Riexinger & Associates, LLC ,
"[I]n considering whether a collection notice violates Section 1692e, [courts] apply the 'least sophisticated consumer' standard," meaning that they "ask how the least sophisticated consumer would understand the collection notice."
In Avila , the Second Circuit held that "the FDCPA requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees," where applicable.
a debt collector who is willing to accept a specified amount in full satisfaction of the debt if payment is made by a specific date could considerably simplify the consumer's understanding by so stating, while advising that the amount due would increase by the accrual of additional interest or fees if payment is not received by that date.
Shortly after deciding Avila , the Second Circuit stated in Taylor that a debt collection notice need not inform consumers that their debt is not accruing interest. Taylor v. Financial Recovery Services, Inc. ,
Here, the defendant's debt collection notice violated Section 1692e because it failed to advise consumers that their debt was still accruing interest and/or fees. Like the debt collection notice in Avila , the notice here fails to warn consumers that they may fail to pay their debt in full, even if they pay the amount provided in the notice, if they do not make the payment by the specified date. Though the additional interest and/or fees do not start accruing again until after a specific date that is several weeks after the notice is sent and by which the defendant states that it "expect[s]" payment, the lack of a warning of additional interest still puts the consumer at risk of owing additional money without clear warning.
True, consumers would fully satisfy their debt if they pay the amount set forth in the notice by the date specified therein, which seems to fulfill Avila 's statement that "a debt collector will not be subject to liability ... [if the notice] states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date."
In addition, it is debatable whether the collection notice "clearly state[d] that [the defendant would] accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specific date." Avila ,
The defendant argues that the least sophisticated consumer would be able to glean that interest and/or fees were still accruing because-looking at the successive notices together-the total amount owed increased with each monthly notice. That argument fails because the defendant has cited no case, and the Court has found none, supporting the proposition that the least sophisticated consumer should be expected to consider the notices as a group. Further, that reasoning could not apply to the initial notice that the plaintiff received, as a consumer reading that first notice would have no way of knowing that subsequent notices would have higher balances.
III.
For the above reasons, the Court denies the defendant's motion for summary judgment. Further, because there are no genuine issues of material fact and the defendant has had "adequate opportunity to develop and present its case," Bridgeway Corp. v. Citibank ,
IT IS SO ORDERED.
The Court, however, is hesitant to require debt collectors to state explicitly that payment will satisfy consumers' debt in full, as such a requirement would run afoul of Taylor by requiring them to state that there would be no additional payments required.
Reference
- Full Case Name
- Cristian D. CORTEZ v. FOSTER & GARBUS, LLP
- Cited By
- 1 case
- Status
- Published