Jackson v. POM Recoveries, Inc.

DESHAWN JACKSON, Plaintiff, v. POM RECOVERIES, INC., Defendant.

17-CV-6118 (AMD)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 21, 2020

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

On October 20, 2017, the plaintiff brought this action against POM Recoveries, Inc., alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692. The parties cross-moved for summary judgment on February 27, 2020. (ECF Nos. 61, 62.)¹ For the reasons set forth below, the defendant's motion is granted and the plaintiff's motion is denied.

BACKGROUND

The disputed debt arises from medical treatment that the plaintiff's daughter allegedly received at New York Methodist Hospital on May 3, 2016. (ECF No. 63-3 at ¶¶ 7-8.) In an effort to collect the debt on behalf of New York Methodist Hospital, the defendant sent a collection letter to the plaintiff on August 3, 2017. (ECF No. 63-3 at ¶ 9.) The letter begins with the following: "We represent NEW YORK METHODIST HOSPITAL, the creditor listed above. NEW YORK METHODIST HOSPITAL records indicate that you have a past due balance in the amount of $2,467.75." (ECF No. 1-2 (Ex. A); ECF No. 63-3 at ¶ 12.) The front page of theletter continues: "This debt may be covered entirely or in part by your insurance carrier (e.g., Blue Cross/Blue Shield, Medicare/Medicaid, your union or other)—provided you are qualified. If you feel that you may qualify, please complete the back portion of this letter and return it in the enclosed return envelope. If you do not qualify please enclose your payment." (ECF No. 1-2 (Ex. A); ECF No. 63-3 at ¶ 13.) Next, in bold, capitalized typeface, the letter states that the plaintiff must notify the defendant in writing within 30 days if he intends to dispute the validity of the debt. (ECF No. 1-2 (Ex. A).)

A paragraph entitled "ASSIGNMENT AND RELEASE AUTHORIZATION" appears on the reverse side of the letter:

"I hereby assign any and all benefits to which I may be entitled, to the creditor indicated, on the reverse side of this page, and authorize said benefits to be paid directly to said creditor or to its agency or representative who will be acting on their behalf. I understand further that I am financially responsible to said creditor for all charges not covered by this assignment."

(ECF No. 1-2 (Ex. A); ECF No. 63-3 at ¶ 14.) The plaintiff did not sign or return the assignment and release authorization to the defendant.² (ECF No. 63-3 at ¶ 16.)

STANDARD OF REVIEW

Summary judgment is appropriate only if the parties' submissions, including deposition transcripts, affidavits or other documentation, show that there is "no genuine dispute as to any material fact," and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movant has theburden of showing the absence of any genuine dispute as to a material fact. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citation omitted). A fact is "material" when it "might affect the outcome of the suit under the governing law," and an issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Barlow v. Male Geneva Police Officer Who Arrested Me on Jan. 2005, 434 F. App'x 22, 25 (2d Cir. 2011) (internal citations omitted). Once the moving party has met its burden, the party opposing summary judgment must identify specific facts and affirmative evidence that contradict those offered by the moving party to demonstrate that there is a genuine issue for trial. Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

DISCUSSION

"Congress enacted the FDCPA to protect against the abusive debt collection practices likely to disrupt a debtor's life," Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 81 (2d Cir. 2018) (internal quotations and citation omitted), and prohibit the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. §§ 1692, 1692e. The statute also prohibits "unfair or unconscionable means to collect or attempt to collect debt." 15 U.S.C. § 1692f.

"In the Second Circuit, 'the question of whether a communication complies with the FDCPA is determined from the perspective of the 'least sophisticated consumer.'" Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (quoting Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008)). This standard requires "an objective analysis that seeks to protect the naive from abusive practices, while simultaneously shielding debt collectors from liability for bizarre or idiosyncratic interpretations of debt collection letters."Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 363 (2d Cir. 2005) (internal citations omitted). "[I]n crafting a norm that protects the naïve . . . the courts have carefully preserved the concept of reasonableness," and may assume that "even the least sophisticated consumer . . . possess[es] a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Id. (quoting Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993)). Thus, the defendant's communication is viewed "from the perspective of a debtor who is uninformed, naive, or trusting, but is making basic, reasonable and logical deductions and inferences." Dewees v. Legal Servicing, LLC, 506 F. Supp. 2d 128, 132 (E.D.N.Y. 2007) (internal citation omitted). A court reviewing a disputed communication does not isolate words or phrases, but considers the letter "in its entirety." Schlesinger v. Jzanus Ltd., No. 17-CV-3648, 2018 WL 2376302, at *2 (E.D.N.Y. May 24, 2018).

I. 1692g

Section 1692g of the FDCPA requires a debt collector attempting to collect a debt to provide certain information to a debtor, commonly referred to as a "validation notice." 15 U.S.C. § 1692g (2006); Vetrano v. CBE Group, Inc., No. 15-CV-3185, 2016 WL 4083384, at *5 (E.D.N.Y. Apr. 1, 2016). The purpose of the validation notice is to protect consumers from "debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid" by "inform[ing consumers that they have] certain rights, including the rights to make a written request for verification of the debt and to dispute the validity of debt" within 30 days. Lotito v. Recovery Assocs. Inc., No. 13-CV-5833, 2014 WL 4659464, at *3 (E.D.N.Y. Sept. 17, 2014) (citing Ellis v. Solomon and Soloman, P.C., 591 F.3d 130, 134 (2d Cir. 2010) (internal quotations omitted) and Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (2d Cir. 2003)). Specifically, the validation notice must include:

(1) the amount of the debt;

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

(3) a statement that unless the consumer disputes the validity of the debt, or any portion thereof, within thirty days after receipt of the notice, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor, upon the consumer's written request within the thirty-day period.

15 U.S.C. § 1692g; Vetrano, 2016 WL 4083384, at *5.

The debt collector must also convey the information in § 1962g clearly. Jacobson, 516 F.3d at 90 (citation omitted). A validation notice is not legally sufficient "if that notice is overshadowed or contradicted by other language in communications to the debtor." Jacobson, 516 F.3d at 90 (citing Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998)). "A notice overshadows or contradicts the validation notice if it would make the least sophisticated consumer uncertain as to her rights." Jacobson, 516 F.3d at 90 (internal quotations omitted); see also Vertrano, 2016 WL 4083384, at *5 ("'Even if a debt collector conveys the required information, the collector nonetheless violates the [FDCPA] if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty.'" (quoting DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001))). "Since 2006, this prohibition against 'overshadowing' has also been enshrined in the text of the FDCPA itself: '[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.'" Belichenko v. Gem Recovery Systems, 17-CV-01731 (ERK) (ST), 2017 WL 6558499, at *6 (E.D.N.Y. Dec. 22, 2017) (quoting § 1692g(b)).

The plaintiff contends that the defendant's assignment and release authorization overshadows the validation notice in two ways: (i) a reader might simply overlook or otherwise forego his right to dispute the alleged debt and conclude that the insurance provider will pay the debt; and (ii) a reader might think that signing and returning the assignment and release authorization is time sensitive. (ECF No. 62-4 at 18.) The essence of the plaintiff's argument is that the letter was purposefully designed to "fool consumers" into giving up their validation rights. (Id.) Because I find that the assignment and authorization release does not overshadow the validation notice, I conclude that the collection letter's inclusion of the assignment and release authorization does not violate the FDCPA as a matter of law.

The plaintiff concedes, as he...