The opinion of the court was delivered by: Pallmeyer, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Lori Pettit ("Pettit") filed this class action
complaint on February 24, 1998, against Defendants Retrieval
Masters Creditors Bureau, Inc. ("RMCB") and RMCB's owner, Russell
Fuchs ("Fuchs"), alleging that the Defendants violated the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692e, 1692e(10),
1692e(16) ("FDCPA") when they sent her a collection letter
requesting payment on behalf of a company from which she had
ordered merchandise. Pettit claims that the Defendants' use of
the name "Creditors Bureau," along with references to her "file"
and to the "National Delinquent Debtor File" ("NDDF") falsely
suggest that RMCB is a credit bureau. Furthermore, she alleges
that references in the letter to the NDDF in the letter falsely
impression that a debtor will face serious consequences for
The parties filed cross-motions for summary judgment. Pettit's
motion for partial summary judgment asserts that the text of the
collection notice violates the FDCPA. In addition, Plaintiff
argues that not only RMCB, but Fuchs also is liable as a matter
of law for choosing the allegedly misleading name of the company
and allowing the continued use of the name.
Defendants RMCB and Fuchs filed separate motions for summary
judgment. Fuchs' motion is based on the proposition that he is
neither a debt collector, nor personally involved in the alleged
offending behavior and thus cannot be personally liable for the
actions of the corporation. RMCB argues that it did not violate
the FDCPA because the name of the company is not misleading to
the unsophisticated consumer and because reference to the NDDF in
the collection letter does not deceptively indicate that the
consumer will face serious consequences for a failure to pay.
August 12, 1997 letter to Plaintiff
Plaintiff Lori Pettit owed $20.70 to an entity known as
Crafting and Decorating Made Simple for literature she ordered
from that company. (Defendants' Joint Rule 12(m) Statement
(hereinafter "Defendants' 12(m)") ¶ 8.) Despite repeated
requests, Pettit did not make payment, so Crafting and Decorating
Made Simple turned the matter over to RMCB. On August 12, 1997,
RMCB sent Pettit a letter in which it requested payment on behalf
of Crafting and Decorating Made Simple. (Id. ¶ 8.) The letter,
dated August 12, 1997, reads as follows:
NOTICE BEFORE DEBTOR FILE NOTIFICATION [surrounded by asterisks]
For an amount of $20.70, are you willing
to let Crafting and Decorating Made
Simple record your name on a delinquent
debtor file, computerized on a national
You have had ample opportunity to explain
why you have not paid our client,
Crafting and Decorating Made Simple,
for the order shipped to you.
It is essential that you mail payment in
full by 09/12/97.
Remember, your account is now being
handled by debt collectors who want to
see this matter resolved. Clear your
record with us once and for all. Remit
the $20.70 owed and keep Crafting and
Decorating Made Simple from putting
your name on the National Delinquent
Debtor File, which could affect your
ability to obtain certain types of credit
with direct marketing companies.
(Id. ¶ 11; Collection Letter, Ex. A to Plaintiffs Complaint.) The
front of the letter includes a notice to "SEE REVERSE FOR
IMPORTANT INFORMATION"; the information on the reverse is a
statement in light type: "This is an attempt to collect a debt.
Any information obtained will be used for that purpose. This
communication is from a debt collector. New York City Department
of Consumer Affairs License Number 808906." (Collection Letter,
Ex. A to Plaintiff's Complaint) (original quotation marks
At her deposition, Pettit initially acknowledged that she knew
the letter was from a collection agency, but went on to testify
that she was misled by the letter and thought the letter was from
a credit bureau. (Defendants' 12(m) ¶ 43.) She cited Defendant's
name and the contents of the letter as her basis for this belief:
Q. Did you know who sent you the letter?
A. Retrieval Masters Creditors Bureau.
Q. And you knew they were a debt collector, didn't you?
Q. You didn't think that Retrieval Masters Creditors Bureau was
a credit bureau, did you?
Q. Why did you think that?
A. Because it states that in ...