The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
Section 1692e(11) of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692 et seq., requires that collection
letters from debt collectors provides certain information to the
recipients. An initial communication must disclose that the debt
collector is attempting to collect a debt, and that any
information obtained will be used for that purpose. Any
subsequent communication must disclose that it is from a debt
collector. Failure to make such disclosures is defined as a
deceptive debt collection practice. 15 U.S.C. § 1692e(11). At
issue in the instant case is whether the disclosures must track
the precise language in the statute, or whether they must merely
convey the intended message.
Plaintiff Gwendolyn Ross has filed a one count putative class
action complaint alleging that defendant Commercial Financial
Services, Inc. ("CFS") and Securitized Multiple Asset Rated Trust
1997-6 ("SMART") violated the FDCPA by sending her the letter
attached to this opinion as Exhibit A. Defendants have moved to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the
letter clearly complies with the requirements of § 1692e(11). For
the reasons set forth below, defendants' motion to dismiss is
granted.
Plaintiff alleges that shortly after March 7, 1998, she
received the collection demand letter from CFS attached as
Exhibit A. That letter was not the first letter sent by CFS to
plaintiff with respect to the debt in question. The letter sought
to collect an alleged $1,610.27 credit card balance that CFS
purchased from Discovery Card/Greenwood Trust Company.
Plaintiff alleges that Exhibit A violates § 1692e(11), which
defines as a deceptive debt collection practice:
The failure to disclose in the initial written
communication with the consumer and, in addition, if
the initial communication with the consumer is oral,
in that initial oral communication, that the debt
collector is attempting to collect a debt and that
any information will be used for that purpose, and
the failure to disclose in subsequent communications
that the communication is from a debt collector,
except that this paragraph shall not apply to a
formal pleading made in connection with a legal
action.
Because Exhibit A is a "subsequent communication," § 1692e(11)
requires that the letter disclose only that it is from a debt
collector. Id. The first full line of Exhibit A states that
"Commercial Financial Services is a different kind of debt
collection company." Plaintiff argues that by providing the
quoted language instead of the exact language used in the statute
— "is from a debt collector," — CFS has attempted to mislead the
recipient, negating the message required by the statute that the
sender has an adverse interest to the recipient. Plaintiff argues
that CFS does this intentionally, to portray itself as a debt
counselor or financial advisor to the debtor, rather than as a
collection agency. Indeed, plaintiff even argues that CFS's
choice of name itself violates the act by suggesting that CFS is
a financial advisor rather than a debt collector.
The purpose of the FDCPA is to eliminate abusive debt
collection practices by debt collectors. 15 U.S.C. § 1692(e). As
noted by defendants in their brief, one of those abusive
practices includes misrepresenting a collection agency as a
credit bureau. S.Rep. 382, 95th Cong., 1st Sess. 1977, 1977
U.S.S.C.N. 1695, 1702 (1977). Because it is designed to protect
consumers, the FDCPA is generally liberally construed in favor of
consumers to effect its purpose, Cirkot v. Diversified Financial
Systems, Inc., 839 F. Supp. 941 (D.Conn. 1993), and whether a
communication or other conduct violates the FDCPA is determined
by analyzing it from the prospective of an "unsophisticated
consumer." Gammon v. GC Services Limited Partnership,
27 F.3d 1254, 1257 (7th Cir. 1994). "The unsophisticated consumer
standard protects the consumer who is uninformed, naive, or
trusting, yet it admits an objective element of reasonableness."
Id. That objective element protects debt collectors from
liability for "unrealistic or peculiar interpretations of
collection letters." Id.
In the instant case, the letter clearly discloses that CFS is a
"different kind of debt collection company." It is difficult to
image how even the most unsophisticated consumer could interpret
that phrase as meaning anything other than the fact that CFS is a
debt collector. A "debt collection company" is a "debt collector"
in anyone's vernacular. Moreover, plaintiff's argument that the
phrase "a different kind," coupled with plaintiff's name somehow
misleads recipients into believing that CFS is anything but a
debt collector is utterly specious in light of the fact that the
entire context of the letter is to settle an existing debt, and
that the letter contains in bold print the statutory requirement
for initial communications:
Please understand that this is an attempt to collect
a debt. Any information obtained will be used for
that purpose.