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Elizabeth Stricklin, Formerly Known As Elizabeth Noffsinger, On Behalf v. Jefferson Capital Systems

November 3, 2011

ELIZABETH STRICKLIN, FORMERLY KNOWN AS ELIZABETH NOFFSINGER, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
JEFFERSON CAPITAL SYSTEMS, LLC, A GEORGIA LIMITED LIABILITY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM AND ORDER

Pending before the Court are defendant Jefferson Capital Systems, LLC's motion to dismiss (Doc. 13) and plaintiff Elizabeth Stricklin's cross-motion for summary judgment (Doc. 17). For the following reasons, defendant's motion to dismiss is DENIED. Further, plaintiff's cross-motion for summary judgment is DENIED.

Introduction and Background

On March 15, 2011, plaintiff filed a class action complaint alleging on behalf of herself and other similarly situated consumers*fn1 that defendant violated various provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (See Doc. 2). Defendant is a debt collector. Defendant allegedly attempted to initiate recovery of a consumer debt from plaintiff on or about September 13, 2010. Plaintiff alleges defendant sent a "collection letter" to plaintiff "deceptively titled" as "Privacy Notice" (Doc. 2, p. 3). The Letter bears plaintiff's name, address, and the account reference number of the debt. It indisputably states,

Dear Customer:

We recognize our obligation to keep information about you secure and confidential. The Jefferson Capital Privacy Policy covers the collection, use, and disclosure of personal information that may be collected by Jefferson Capital. Please take a moment to read the following to learn more about how information is gathered and to whom we disclose the information, and how we safeguard your personal information.

PRIVACY NOTICE We, Jefferson Capital Systems, LLC, provide this notice to you as required by Federal law. We may collect nonpublic personal information about you as permitted by law from: x Your transactions with us; x Prior owners of your account; x Consumer reporting agencies; x Our website when you use it; and x Applications or other forms that you provide to us.

Without your prior consent, we will not communicate with any person other than (to the extent not otherwise prohibited by law) you, your spouse or your personal representative (such as your attorney) in connection with the collection of any debt that we are asked to collect, except as necessary to acquire location information.

We may disclose nonpublic personal information about you to the extent that it is: (a) specifically directed by you; (b) permitted by the Gramm-Leach-Bliley Act (such as to service and maintain your account); and (c) not prohibited by other applicable law, including, but not limited to, the Fair Debt Collection Practices Act.

We restrict access to nonpublic personal information about you to employees who need to know that information to provide services to you.

We maintain physical, electronic and procedural safeguards that comply with federal laws to guard your nonpublic personal information.

Please include your JCS Reference Number on correspondence Sincerely, JEFFERSON CAPITAL SYSTEMS, LLC THIS COMMUNICATION IS FROM A DEBT COLLECTOR. (Doc. 17-1, p. 2).

Further, the reverse side of the letter states, "[y]ou have the right to ask us to stop communicating with you about this debt." It also recites relevant FDCPA provisions. Specifically, it states defendant complies with the FDCPA as its collectors "may not contact [debtor] before 8:00 a.m. or after 9:00 p.m.[,] . . . may not harass [debtor] by using threats of violence or arrest[, and] . . . may not use false or misleading statements." Moreover, it states, "[f]or more information about debt collection activities or to contact the FTC about the way [defendant is] collecting this debt, please contact the FTC." (Doc. 17-1, p. 3).

Plaintiff received no further communications from defendant. Plaintiff states this letter constitutes an "initial communication" related to the collection of a debt that requires certain disclosures under the FDCPA. Specifically, plaintiff contends the letter "withheld the identity of the creditor, and threatened to collect and disseminate [p]laintiff's 'nonpublic personal information' in an effort to bait [p]laintiff into contacting [d]efendant about the [d]ebt." Further, plaintiff argues defendant failed to advise her of the ability to dispute the debt, that the letter was an attempt to collect a debt, that verification of the debt was available to her, and of the debt's general characteristics (Doc. 2, p. 3).

Thus, plaintiff alleges defendant violated 15 U.S.C. §§ 1692(d)-(g) as its "failure to identify the creditor," "to provide the validation disclosures" the FDCPA requires, and its "mischaracterization of the amount owed," demonstrate "a willful and intentional scheme to deceive" that "constitutes wanton disregard for the rights of [p]laintiff and the class" (Doc. 2, p. 7).

Defendant responded to plaintiff's allegations through its instant motion to dismiss filed on April 20, 2011 (Doc. 13). Defendant alleges the letter is not a "collection letter" subject to the FDCPA, but a "privacy notice" required of financial institutions under the Gramm-Leach-Bliley Act (GLBA), 15 U.S.C, § 6801 et seq. (See Doc. 13, p. 1). Defendant states it acquired plaintiff's $230.00 debt originally owed Sprint in October 2008, and placed it unsuccessfully with a series of third-party collection agencies. Defendant stresses it did not engage in any "direct collection efforts" with plaintiff; i.e., it "never made any phone calls to plaintiff and never sent any collection letters" (Doc. 13, p. 2).

Defendant contends the letter is not an "initial communication" of debt collection triggering the obligations of the FDCPA as "[o]ther than reciting the account number, there is no reference to or identification of the debt itself, no demand for payment, nor even a current balance" (Doc. 13, p. 2). In fact, defendant states that as it is a privacy notice, the FDCPA specifically exempts the letter from treatment "as an initial communication in connection with debt collection" (Doc. 13, p. 4) (quoting 15 U.S.C. § 1692g(e)).

On May 19, 2011, plaintiff responded to defendant's motion and filed a cross-motion for summary judgment for violation of 15 U.S.C. § 1692j(a) (Doc. 17). The basis of the cross- motion for summary judgment is an affidavit defendant attached to its motion to dismiss (See Doc. 17) (citingDoc. 13-1). The affidavit is of an authorized representative of defendant stating defendant did not engage in direct collection efforts of plaintiff's debt. Plaintiff contends the affidavit admits the necessary elements of a prima facie 15 U.S.C. § 1692j(a) claim (Doc. 17, pp. 2, 13-15). Further, as plaintiff bases its cross-motion for summary judgment on an affidavit attached to defendant's motion to dismiss, plaintiff argues the Court must convert defendant's motion to dismiss to a motion for summary judgment (Doc. 17, p. 3).

On June 23, 2011,*fn2 defendant responded to plaintiff's cross-motion for summary judgment (Doc. 20). Defendant argues the Court should not reach the merits of plaintiff's cross-motion for summary judgment on a 15 U.S.C. § 1692j(a) violation, as the complaint does not give notice of such a claim. Alternatively, defendant argues it has not violated 15 U.S.C. § ...


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