Portela v. Diversified Consultants, Inc.

DIEGO F. PORTELA, on behalf of himself andall other similarly situated, Plaintiff, v. DIVERSIFIED CONSULTANTS, INC. andJOHN DOES 1-25, Defendant.

Civil Action No. 17-3431

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

February 5, 2019

Not for Publication

OPINION

John Michael Vazquez, U.S.D.J.

This matter involves alleged violations of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq. Presently before the Court is Defendant Diversified Consultants, Inc.'s ("DCI" or "Defendant") motion for judgment on the pleadings. D.E. 18. Plaintiff Diego F. Portela ("Portela" or "Plaintiff") filed a brief in opposition to Defendant's motion (D.E. 22), to which Defendant replied (D.E. 23).¹ After briefing on the motion was complete, both parties filed multiple letters regarding recent decisions from courts in the Third Circuit. D.E. 24, 25, 28, 29, 37-44. The Court reviewed the parties' submissions and decided the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendant's motion is GRANTED.

I. Background & Procedural History²

On or before December 9, 2016, Plaintiff allegedly incurred a debt obligation to Verizon Wireless. Compl. at ¶ 15, D.E. 1. The debt was then referred to DCI for collection. When the debt was referred to DCI, the Verizon obligation was past due and in default. Id. at ¶¶ 19-21.

In a letter dated December 9, 2016 (the "Debt Collection Letter"), Defendant wrote to Plaintiff in an attempt to collect payment for the debt. Id. at ¶¶ 22-23, Ex. A. The Debt Collection Letter stated as follows:

This Notice is to inform you that your account with VERIZON WIRELESS has been referred to our office for collections.

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of the debt, or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Calls to or from this company may be monitored or recorded.

This is an attempt to collect a debt. Any information obtained will be used for that purpose. This communication is from a debt collector.

Sincerely,

Diversified Consultants, Inc.

P.O. Box 551268

Jacksonville, FL 32255-1268

800-604-0064

Id. ¶ 29, Ex. A. DCI's name, toll-free telephone number, website and hours of operations appear in the top right corner of the Debt Collection Letter; both DCI's name and phone number are in bold print. Id. ¶ 32, Ex. A. The toll-free telephone number and address appear again at the bottom of the letter, on a detachable section that Plaintiff was instructed to remove and include with any payment. Id., Ex. A.

After receiving the Debt Collection Letter, Plaintiff filed this putative class action, alleging violations of the FDCPA in his one-count Complaint. Id. ¶¶ 37-54. Plaintiff contends that he and "others similarly situated were sent letters, which would have affected their decision-making with regard to the debt" and "have suffered harm as a direct result of the abusive, deceptive and unfair collection practices described herein." Id. at ¶¶ 52-53. Namely, Plaintiff alleges that the Debt Collection Letter fails to properly inform the least sophisticated consumer that an effective dispute of the debt must be in writing. Plaintiff adds that the least sophisticated consumer would be misled into believing that he could call DCI's toll-free telephone number to dispute the debt. Id. ¶¶ 39-42.

Defendant filed the instant motion on March 20, 2018 (D.E. 18), which Plaintiff opposed (D.E. 22). Defendant replied on April 30, 2018. D.E. 23. Since the motion was fully briefed, Defendant filed five letters containing supplemental authority (D.E. 24, 28, 38, 40, 43), to which Plaintiff responded (D.E. 25, 29, 37, 39, 41). Plaintiff also filed a letter that contained supplemental authority in support of his arguments on January 24, 2019 (D.E. 42), and Defendant filed a letter in response (D.E. 44).

II. Standard of Review

Defendant brings its motion pursuant to Federal Rule of Civil Procedure 12(c). Rule 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party maymove for judgment on the pleadings." Fed. R. Civ. P. 12(c). Pleadings are "closed" after the complaint and answer are filed. Horizon Healthcare Servs., Inc. v. Allied Nat'l Inc., No. 03-4098, 2007 WL 1101435, at *3 (D.N.J. Apr. 10, 2007).

"Under Rule 12(c), judgment will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Bayer Chems. Corp. v. Albermarle Corp., 171 F. App'x 392, 397 (3d Cir. 2006) (internal citations and quotations omitted) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)). A Rule 12(c) motion based on the defense that Plaintiff fails to state a claim is governed by the same standard that applies to a motion to dismiss under Rule 12(b)(6). Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). Thus, to withstand such a motion under Rule 12(c), a plaintiff must allege enough facts to "state a claim to relief that is plausible on its face." In re Lipitor Antitrust Litig., 336 F. Supp. 3d 395, 406 (D.N.J. 2018). A complaint is plausible on its face when there is enough factual content "that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In evaluating the sufficiency of a complaint, a court must "accept all well-pleaded factual allegations . . . as true and draw all reasonable inferences in favor of the nonmoving party." In re Lipitor Antitrust Litig., 336 F. Supp. 3d at 406. A court, however, is "not compelled to accept unwarranted inferences, unsupported conclusions[,] or legal conclusions disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007) (citation omitted). As such, "a complaint should not be dismissed unless it appears beyond doubt that the facts alleged in the complaint, even if true, fail to support the claim." In re Lipitor Antitrust Litig., 336 F. Supp. 3d at 406.

III. Analysis

The FDCPA, 15 U.S.C. § 1692 et seq., "creates a private right of action against debt collectors who fail to comply with its provisions." Grubb v. Green Tree Servicing, LLC, No. 13-7421, 2014 WL 3696126, at *4 (D.N.J. July 24, 2014). To succeed on an FDCPA claim, a plaintiff must demonstrate that "(1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a 'debt' as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt." Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). The fourth factor is at issue here.

The FDCPA was enacted by Congress in 1977 with the purpose of eliminating "abusive, deceptive, and unfair debt collection practices" by debt collectors. 15 U.S.C. § 1692(a). "As remedial legislation, the FDCPA must be broadly construed in order to give full effect to these purposes." Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013). To that end, "[l]ender-debtor communications potentially giving rise to claims under the FDCPA should be analyzed from the perspective of the least sophisticated debtor." Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir. 2006)). "[A]lthough this standard protects naive consumers, it also 'prevents 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.'" Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000) (quoting United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996)).

Portela alleges that the Debt Collection Letter violates two sections of the FDCPA: Section 1692e(10) and Section 1692g(a)(3). Compl. ¶¶ 44-45.

A. Section 1692g

Section 1692g(a) concerns validation notices, or "statements that inform the consumer how to obtain verification of the debt and that he has thirty days in which to do so." Wilson, 225 F.3d at 354. Section 1692g(a) provides as follows:

Notice of debt; contents: 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 is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(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, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, 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, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

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