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PANKO v. PELLETTIERI & ASSOCIATES

United States District Court, N.D. Illinois, Eastern Division


September 24, 2004.

GREGORY PANKO, Plaintiff,
v.
PELLETTIERI & ASSOCIATES, P.C., CARL PELLETTIERI, JR., and RONALD HENNINGS, Defendants.

The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Gregory Panko ("Plaintiff") is suing Defendants, Pellettieri & Associates, P.C., Carl Pellettieri, Jr., and Ronald Hennings ("Defendants") alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"). (D.E. 1.)*fn1 This case is before the Court on Defendants' Motion to Dismiss. (D.E. 4.) Defendants argue that Plaintiff filed his complaint after the statute of limitations had lapsed. (Id. at 2.) As explained further below, Defendants' Motion to Dismiss is denied.

LEGAL STANDARD

  In ruling on a motion to dismiss, the Court accepts all well-pleaded facts alleged in the complaint as true and draws all reasonable inferences from those facts in favor of Plaintiff. See, e.g., McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 614 (7th Cir. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord, e.g., Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003).

  DISCUSSION

  Plaintiff alleges that Defendants sent him an initial communication regarding collection of the alleged debt in a letter dated June 5, 2003. (D.E. 1 ¶ 8.) Plaintiff further alleges that the letter failed to contain notices required by 15 U.S.C. § 1692g(3)-(5), and that Defendant did not provide such information within five days after the letter was sent. (Id.) The pertinent section of the FDCPA, 15 U.S.C. § 1692g, states that "[w]ithin 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[,] . . . send the consumer a written notice containing" various information allegedly not provided by Defendants, the specifics of which are not germane for present purposes. The statute of limitations for a § 1692g claim is "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d).

  Defendants argue that any § 1692g violation occurred on June 5, 2003, the date of the initial communication. (D.E. 4 at 2.) Consequently, Defendants contend, Plaintiff's action, filed on June 10, 2004, is untimely. (Id.) Defendants direct the Court to three cases supporting the proposition that the statute of limitations is triggered on the date a letter forming the basis of an alleged FDCPA violation is sent. (Id.) However, two of three cases cited address the statute of limitations as it expressly relates to § 1692e, and not § 1692g, of the FDCPA. See Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 260 (8th Cir. 1992); Friedman v. Anvan Corp., No. 97 C 2364, 1998 WL 559779, at *2 (N.D. Ill. Aug. 28, 1998) (Castillo, J.). The third case offered, Brink v. First Credit Res., 57 F.Supp.2d 848 (D. Ariz. 1999), does not specify which section of § 1692 was at issue, but it seems clear that it was not alleging a § 1692g claim and appears to be alleging a violation of § 1692e(5) or e(10). See id. at 851 (alleging a violation of FDCPA by attempting to collect time-barred debt); see also Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D. Del. 1991) (discussing such claim in context of alleged § 1692e(5) violation). There is a material difference between cases alleging violations of § 1692e of the FDCPA, on the one hand, and cases alleging violations of § 1692g of the FDCPA, on the other. Section 1692e of the FDCPA concerns false or misleading representations made in connection with an attempt to collect a debt. See 15 U.S.C. § 1692e. Hence, the cases cited by Defendants reason that a violation of § 1692e occurs at the time a false, misleading, or deceptive letter is sent because the conduct necessary for the alleged violation is complete at the time of the mailing, and the author may no longer comply with the FDCPA at that point because the communication has been mailed. See Mattson, 967 F.2d at 261; Friedman, 1998 WL 559779, at *2-3; Brink, 57 F.Supp.2d at 852.

  In contrast, § 1692g is a statute directed to ensuring that certain disclosures are made in connection with attempts to collect a debt. While a debt collection attempt can be made with the requisite disclosures "in the initial communication to the consumer," the debt collector also has an additional grace period and can satisfy its disclosure obligations so long as it makes the disclosures in a written notice sent "[w]ithin five days of the initial communication." 15 U.S.C. § 1629g(a). As a result, an alleged § 1692g violation would not ripen until the passage of five full days after the initial (and allegedly inadequate) communication was made. Or, to put things in more concrete terms, if an allegedly inadequate initial communication were mailed on June 5, 2004, then the debt collector would have until midnight on June 10, 2004, before the alleged § 1692g violation would come into existence.*fn2 Thus, the § 1692g violation could not be the basis of any suit until June 11, 2004, and, under any conception of the passage of a one-year statute of limitations, the putative plaintiff would have until at least June 10, 2005, to file suit. This interpretation of when a § 1692g violation comes into existence is consistent with what little law the Court has been able to locate that is directly on point — see Drumright v. Collection Recovery, Inc., 500 F.Supp. 1, 1-2 (M.D. Tenn. 1980); Russell v. Bowman, Heintz, Boscia & Vician, P.C., 744 N.E.2d 467, 473 (Ind.Ct.App. 2001) — and it also comports with the way people normally speak when using the term "within" a period of days. If someone promises to get back with you "within a day," one would not understand that statement to mean that the other individual would be contacting you "by the end of today."

  The Court finds that a violation of § 1692g occurs at the expiration of the five day period debt collectors are given to comply with the § 1692g notice requirements. Plaintiff alleges, and Defendants do not dispute, that the initial letter was dated June 5, 2003. (D.E. 1 ¶ 8.) Therefore, assuming the letter was sent (as opposed to merely being dated) on June 5, 2003, Defendants would have had through June 10, 2003, to provide Plaintiff with the required notices without violating § 1692g. Plaintiff's cause of action under § 1692g would not ripen until the expiration of the five days, or June 11, 2003.*fn3 Thus, even without the benefit of Federal Rule of Civil Procedure 6(a) ("Rule 6(a)"), Plaintiff could file suit through June 10, 2004. Plaintiff filed this suit on June 10, 2004, and the Court finds that the suit was timely within the statute of limitations. Accordingly, Defendants' Motion to Dismiss is denied.

  Under the Court's reading of § 1692g, there is no need to see if more time might be available to Plaintiff under Rule 6(a), which deals with the computation of time. There are many at-least-colorable arguments suggested by the Court's review of the caselaw by which the pro se Plaintiff might be said to be entitled to one or perhaps even two additional days under the limitations period as a result of Rule 6(a). The Court need not canvass or speculate on the validity of these potential arguments, but the Court does note that its result in this case is consistent with caselaw from several jurisdictions that apply Rule 6(a) to the FDCPA statute of limitations, § 1692k(d), and to the similarly worded statute of limitations in the Truth in Lending Act ("TILA").*fn4 For example, in Clark v. Bonded Adjustment Co., Inc., 176 F. Supp. 2d 1062, 1068 (E.D. Wash. 2001), the court held that Rule 6(a) applied to the FDCPA. The Clark court reasoned, after collecting caselaw, that the majority view favored applying Rule 6(a) to federal statutes of limitations due to the language in the Rule itself — that Rule 6(a) applies to "any applicable statute" — and the Supreme Court's recognition that Rule 6(a) should be generously applied. See id. at 1065 (citing, inter alia, Union Nat'l Bank of Wichita v. Lamb, 337 U.S. 38, 41 (1949)).*fn5 Additionally, the court concluded that § 1692k(d) was non-jurisdictional because the word "jurisdiction," which appears as a subheading in the United States Code, was not contained in the FDCPA as actually enacted and printed in the Statutes at Large, and because the time limit language in § 1692k(d) as enacted does not refer to the jurisdiction of federal courts in any way. See id. at 1067-68 ("The Supreme Court has stated that . . . the Code cannot prevail over the Statutes at Large when the two are inconsistent") (internal quotation marks and citation omitted).*fn6 And Clark also found that its conclusion that Rule 6(a) should be applied was consistent with available legislative history. See id. (explaining that the only published committee report on § 1692k(d) states: "`[j]urisdiction for actions in . . . U.S. district courts; there is a 1 year statute of limitations.'").

  Several other courts have joined in applying Rule 6(a) to the FDCPA and the comparable TILA statute of limitations. See, e.g., Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir. 1995) (applying Rule 6(a) to mailing date under FDCPA); Hooper v. Capital Credit & Collection Servs., No. Civ. 03-793-JE, 2004 WL 825616, at *2 (D. Or. Jan. 16, 2004) (applying Rule 6(a) to the FDCPA); Krajci v. Provident Consumer Disc. Co., 525 F. Supp. 145, 150 (E.D. Pa. 1981) (applying Rule 6(a) in TILA context); McMillon v. Budget Plan of Va., 510 F. Supp. 17, 19 (E.D. Va. 1980) (concluding that even if the TILA statute of limitations is regarded as a condition of liability, Rule 6(a) should apply for the sake of uniformity).

  The approach taken by the Tenth Circuit also is consistent with the Court's result. The Tenth Circuit reads the language of § 1692k(d) itself, "within one year," as excluding the date of the violation in the calculation of the statute of limitations. See Johnson v. Riddle, 305 F.3d 1107, 1115 (10th Cir. 2002). Thus, the Tenth Circuit reaches the same result as jurisdictions that apply Rule 6(a) to § 1692k(d). See id.

  The Tenth Circuit's analysis in Johnson also is instructive because Johnson looked at a case cited by Defendants, Mattson v. U.S. West Communications, Inc., 967 F.2d 259 (8th Cir. 1992), which held, among other things, that the date of the mailing in a § 1692e case should be included in the limitations period. As Johnson explained, every circuit weighing in on the FDCPA statute of limitations since Mattson has rejected its position on this issue. See id. (collecting cases). Furthermore, Mattson relied on a single case, Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980), for its conclusion, and, as Johnson explained, Rust "has since been overruled [by the Sixth Circuit]-on precisely [that] point." Id. (citing Bartlik v. Dept. of Labor, 62 F.3d 163, 166 (6th Cir. 1993)).*fn7

  Defendants also cite Maloy v. Phillips, 64 F.3d 607 (11th Cir. 1995), but that case does not direct a different result here. First, Maloy was a § 1692e case, and its conclusion that a § 1692e violation occurs on the date of mailing, id. at 608, is not the question at issue. Second, Maloy applied Rule 6(a) to its statute of limitations analysis of the plaintiff's § 1692e(11) claim (expressly rejecting Defendant's other principal case, Mattson, see id. at 608), and if Rule 6(a) is applicable here, then Plaintiff avoids dismissal in any event. Third, to the extent Maloy briefly spoke in dicta to the accrual of a § 1692g violation, it appears that the opinion is consistent with this Court's holding today. See id. at 608-09 ("If the initial collection letter did not provide this information [the disclosures], Phillips [the defendant] would have until five days after the initial communication to comply with the requirements of § 1692g. . . .").*fn8 However, because of the dates of the alleged infractions in Maloy, and the filing of the lawsuit in that case, it was not particularly important how the statute of limitations was computed for the § 1692g count (because it was clearly timely via the five-day grace period for the FDCPA defendant to make its disclosures). That is why Maloy remanded to the district court for it to proceed on the merits. Id. at 609.

  For all of these reasons, the Court finds that Plaintiff's FDCPA claim was timely filed. The Court's conclusion is consistent with the weight of precedent, the text of § 1692g, and what little legislative history appears to be available. CONCLUSION

  For the reasons explained above, Defendants' Motion to Dismiss is denied.

  So Ordered.


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