Pollard v. Doe

967 F.Supp.2d 470

Kevin POLLARD and Robbie Pollard

v.LAW OFFICE OF MANDY L. SPAULDING and Does 1–10.

Civil Action No. 12–12184–RGS.

United States District Court, D. Massachusetts.

Sept. 9, 2013.

Alan E. Brown, Scott D. Burke, Morrison, Mahoney LLP, Boston, MA, for Defendant.

Sergei Lemberg, Lemberg & Associates, Stamford, CT, for Plaintiff.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

STEARNS, District Judge.

Plaintiff Robbie Pollard ¹ alleges that the Law Office of Mandy L. Spaulding (Spaulding) violated various provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., by engaging in “overzealous collection tactics.” Before the court is Spaulding's motion for judgment on the pleadings.

BACKGROUND ²

Pollard incurred a debt in the amount of $611.84, which was referred to Spaulding for collection. On October 23, 2012, Spaulding mailed Pollard a letter that stated in relevant part:

This is the first letter being sent to you by my office, following attempts by the original creditor and a collection agency to reach you to resolve this matter. I am not inclined to use further resources attempting to collect this debt before filing suit.

I have been retained to collect this debt through whatever legal means are available and without your cooperation, I am obligated to my client to pursue the next logical course of action without delay.

Def.'s Mot. Ex B. At the bottom of the page, in significantly smaller typeface, the letter provided a “NOTICE OF IMPORTANT RIGHTS” as required by 15 U.S.C. § 1692(g). The notice informed Pollard that “despite the fact that you have a thirty (30) day period to dispute the debt may not preclude [sic] the filing of legal action against you prior to the expiration of the period.” Def.'s Mot. Ex B. The letter was printed on law firm letterhead and signed “Mandy L. Spaulding, Esq.”

Upon receipt of the letter, Pollard called Spaulding to request information regarding the amount of the debt and the payment history. Pollard alleges that in a conversation with Nicholas Amaral, an attorney in Spaulding's office, Amaral demanded that Pollard pay the debt in full. He also threatened her with a lawsuit if she failed to do so.

Pollard filed this action on November 26, 2012, alleging that the letter and responsive telephone call violated the FDCPA. Specifically, Pollard claims that Spaulding violated the FDCPA: (1) by engaging in conduct the natural consequence of which was to harass, oppress, or abuse her, 15 U.S.C. § 1692d; (2) by using false, deceptive, or misleading representation or means in connection with the collection of a debt, 15 U.S.C. § 1692e; and (3) by engaging in communication that overshadowed and contradicted her right to dispute the debt during the 30–day validation period, 15 U.S.C. § 1692g. ³

DISCUSSION

Rule 12(c) permits a party to move for judgment on the pleadings at any time after the pleadings are closed, so long as the motion does not delay the trial. Fed.R.Civ.P. 12(c). A Rule 12(c) motion differs from a Rule 12(b)(6) motion in that it implicates the pleadings as a whole. “In the archetypical case, the fate of such a motion will depend upon whether the pleadings, taken as a whole, reveal any potential dispute about one or more of the material facts.” Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir.2004). “Because [a Rule 12(c) ] motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom....” Perez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir.2008), quoting R.G. Fin. Corp. v. Vergara–Nunez, 446 F.3d 178, 182 (1st Cir.2006). In doing so, the court “may consider ‘documents the authenticity of which are not disputed by the parties; documents central to plaintiff['s] claim; and documents sufficiently referred to in the complaint.’ ” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007), quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993) (original alterations omitted).

The FDCPA was enacted in the wake of “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. § 1692(a). To suppress these practices while also ensuring that “those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged,” id. § 1692(e), the Act regulates, among other things, all forms of communications with borrowers. It prohibits “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. It further bars debt collectors from using “false representation or deceptive means to collect any debt.” Id.§ 1692e(10). And, “[a]s a response to ‘the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid,’ the Act gives the consumer the right to dispute a debt claimed by a debt collector, and to seek verification of the validity of the debt.” Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85 (2d Cir.2008), quoting S.Rep. No. 95–382, at 4 (1977), 1977 U.S.C.C.A.N. 1695, 1699. Section 1692g requires a debt collector to inform the consumer of that right. See15 U.S.C. § 1692g(a). “Any collection activities and communication during the 30–day [validation] period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt....” Id. § 1692g(b).

When considering whether a particular collection notice violates sections 1692e and 1692g of the FDCPA, courts look to whether the objective “least sophisticated debtor” would find the notice improperly threatening or misleading. Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993). The “least sophisticated consumer” is an objective standard. Easterling v. Collecto, Inc., 692 F.3d 229, 234 (2d Cir.2012). It protects “the gullible as well as the shrewd” but “prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.” Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 612 (6th Cir.2009) (internal quotation marks and citations omitted). The standard presumes the consumer possesses at least “a basic level of understanding and willingness to read with care.” Id.

Courts have differed as to the standard applied to claims made under section 1692d. At least one Court of Appeals has held that although the “least sophisticated consumer” standard used to evaluate claims under sections 1692e and 1692g is not precisely applicable to claims for harassing, oppressive, or abusive conduct, “the consumer protective purposes of the FDCPA require [adoption of] an analogous standard for violations of § 1692d.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.1985). The Court therefore concluded that claims under that section must be “viewed from the perspective of a consumer whose circumstances make him relatively more susceptible to harassment, oppression, or abuse.” Id. Other courts have adopted standards that look to the viewpoint of the “unsophisticated consumer,” e.g., Blair v. Sherman Acquisition, 2004 WL 2870080, at *2 (N.D.Ill. Dec. 13, 2004), or a consumer who is “reasonable,” e.g., Graziano v. Harrison, 763 F.Supp. 1269, 1281 & n. 8 (D.N.J.1991), rev'd in part, vacated in part on other grounds,950 F.2d 107 (3d Cir.1991).

Because Pollard's section 1692d claim fails under any standard, the court need to resolve the dispute over its application in Pollard's case. Section 1692d “is not intended to shield even the least sophisticated recipients of debt collection activities from the inconvenience and embarrassment that are natural consequences of debt collection.” Beattie v. DM. Collections, Inc., 754 F.Supp. 383, 394 (D.Del.1991), citing Bieber v. Associated Collection Servs., Inc., 631 F.Supp. 1410, 1417 (D.Kan.1986). It “does not preclude debt collectors from making non-abusive statements designed to encourage voluntary payment,” but rather prohibits “only oppressive and outrageous conduct.” Id. Pollard has alleged no such conduct here. Letters are among the least intrusive means of communicating with a debtor, and there is no suggestion that Spaulding communicated with Pollard by telephone other than on the one occasion that was initiated by Pollard herself. See15 U.S.C. § 1692d(5) (prohibiting repeated telephone calls but imposing no limitations on the quantity of letters sent). Moreover, while Pollard is correct that even a single communication can violate section 1692d if sufficiently egregious, she does not explain how that standard is satisfied here. Neither the letter nor the telephone call is alleged to have contained language that was obscene, profane, or threatened physical harm, for example, see id. § 1692d(1)-(2), and courts have consistently held that the mere threat of litigation does not give rise to liability under 1696d, see, e.g., Jeter, 760 F.2d at 1178. Pollard's section 1692d claim therefore fails as a matter of law.

Pollard's claims under sections 1692e and 1692g stand on different footing. With respect to the latter, Pollard argues that the contents of the letter would make the least sophisticated consumer uncertain as to her rights to dispute and seek validationof the debt under section 1692g. ⁴See Jacobson, 516 F.3d at 90 (“A notice overshadows or contradicts the validation notice if it would make the least sophisticated consumer uncertain as to her rights.” (internal quotation marks omitted)). She takes particular issue with the letter's statements that Spaulding was “not inclined to use further resources attempting to collect this debt before filing suit” and would “pursue the next logical course of action without delay.” Pollard contends that these statements obscure the fact that the debtor has a right to...