CA's all excited about an FDCPA suit that was dismissed.

I found the text of this decision on two sites. One has it hidden to all but members; here's the other:

http://www.debtorboards.com/smf/index.php?topic=5085.0

 

Do they still have that outrageous TOS at debtorboards? I found it ironic that they implemented that policy for one person, Rottweiler, and she's still permitted to personally attack people.

Not a very friendly place.

 

Go to whatever boards you wish. If you don't want to agree to a board's terms of service, that's your choice. And if you have been there, then it is likely that you have agreed to their terms of service. So what's the problem?

I haven't found them onerous. Nor have I found them particularly different from the TOS of any other board that I have visited.

Whatever floats your little boat.

 

I knew it . . .

Anyway, you don't find a TOS which was put into effect for one person strange when she was the one attacking and running members off? I do.

Whatever, that board is full of harmful misinformation which is allowed to stand because, again, Rottweiler, runs every one off due to her personal attacks. It may explain why you're here and perhaps, why you post in the manner you do. You may have been de-sensitized to the insanity.

Step away from the light Oracle!!!

Seriously, and hopefully, you can take away some good information from here. This board is about helping folks, not allowing one person to attack and personally bash posters who dare disagree with the pontificator. I think perhaps one of your fellow DBer's attempted that and was rightfully corrected.

Finally, and just to let you know, we welcome your addition. I'm yanking your chain a little here but, there are no hard feelings on my end now that I know the abuse you've suffered : )

 

Then it must be a non-problem.

And your edit AFTER my post speaks volumes.

 

No, its not a problem for me because I don't go there. It's a problem for people seeking advice when they get bad advice and then act upon it. It's a problem insofar as the board admins over there don't enforce it with respect to one person and therefore, undermine their credibility. It's a problem when the non-enforcement enables one poster to run other good posters off.

Why do you think many post here and on IC but, never at debtorboards? Who wants to deal with that?

But no, its not a problem for me per se.

 

Are you bashing another board?

One might say the same for every board in this part of cyberspace. All boards have their focus, their pluses and their minuses. I find debate and discussion more informative than directive and insult.

But then again you seem to have an ax to grind.

From my view, IC has been rather moribund since the great Yahoo Answers enterprise bit the dust. The whole thing was rather amusing, especially Hedwig's spirited defense of it.

 

I don't think its appropriate to allow a poster to personally attack someone and that reflects poorly on the board as a whole. Obviously, I'm not a fan of the board which is why I don't visit it.

I don't think that is an ax to grind rather, a natural response. If you were personally attacked here and the admins allowed it, would you have a favorable opinion of the board? No.

I don't personally agree with the methodolgy expressed over there either which is sue, sue, sue, and lose. However, that is besides the point.

I have no idea what you're referencing about IC.

 

One might consider your approach to me as attacking.

I don't personally agree with what a lot of people advocate, but that does not prevent me from learning what they may have to say.

And that includes you.

If you don't understand what is being referenced concerning IC, then you can't be a frequent visitor. Your assessment of their efficacy is limited.

Now. In recognition that CreditNet is trying to inform people, why not let the strengths of one's argument carry the day instead of personal invective and attempts to bully.

I find your stalking of my posts rather rude and quite offensive.

So now we're even. Time to move on.

 

Great, we both find one another repugnant. I am sorry if I offended you and that is said sincerely.

However, I am not attacking you rather, I disagree with some of what you say. When I do, I present an opposite viewpoint or amplify some of what I feel that you've left out. That is not stalking rather, the purpose of a message board. With that said, I have also agreed with what you've said as much as I have disagreed.

I do not use the tone that you use and I have not questioned your motives for being here until now. The same cannot be said of you as to your posture to me. In short, I am sorry that you feel that I am attacking you but, I'm not.

In the spirit of goodwill, I have offered my apology for offending you.

 

Your apology is accepted.

We will leave it to others to judge what's valid and what isn't. That's fair, isn't it?

Time to move on.

 

I found it at about 5 sites and all of them were free and viewable to the public. Here is the easy answer. View it below.

 

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
Gershon JACOBSON, on behalf of himself
and other similarly situated
Plaintiff,
-against-
HEALTHCARE FINANCIAL SERVICES,
INC.,
Defendant.
------------------------------------------------x
MEMORANDUM AND ORDER
04 - CV - 3268 (ILG)
GLASSER, United States Senior District Judge
INTRODUCTION
In this putative class action Gershon Jacobson (â??Plaintiffâ?) alleges that
Healthcare Financial Services (â??Defendantâ?) sent a debt collection letter that violated 15 U.S.C. § 1692g(a)(3) of the Fair Debt Collection Practices Act (â??FDCPAâ?). Before the Court is Defendantâ??s motion to dismiss under Rule 12(b)(6) for failure to state a claim, as well as a request for costs, disbursements, attorneyâ??s fees and sanctions against Plaintiff and/or Plaintiffâ??s counsel for instituting a frivolous lawsuit.

FACTS
On or about July 13, Defendant mailed a letter to Plaintiff demanding payment of a $492.00 debt. The letter, in its entirety, reads as follows:
This account has been assigned to our office for collection.
If your payment or notice of dispute is not received in this office within 30
days, we shall recommend further action be taken against you to collect
this outstanding balance.

Note: that we have the right to report this debt to the appropriate credit
bureau which might have a negative impact on your credit rating. Make
your check or money order payable to Healthcare Financial Services.
Please read below. This communication is an attempt to collect a debt and
any information obtained will be used for that purpose.
In compliance with the provisions of paragraph 809 of the Consumer
Credit Protection Act, Amendments, you are hereby notified of the
following:
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 the debt is valid.
If you notify this office in writing within 30 days from receiving this notice,
this office will obtain verification of the debt or obtain a copy of a
judgement and mail you a copy of such judgement or verification
If you request from this office in writing, within 30 days after receiving
this notice, this office will provide you with the name and address of
original creditor, if different from the current creditor.

DISCUSSION
I. Standards of Review
Defendant seeks dismissal under Fed. R. Civ. Proc. 12(b)(6) or, in the alternative, summary judgment. See, e.g., Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 573 (2d Cir.2005). Although Defendantâ??s motion is properly construed as a motion for judgment on the pleadings under Rule 12(c) rather than a motion for failure to state a claim under Rule 12(b)(6), the standard for conversion to Rule 56 is the same under either rule. Compare Aetna Cas. and Sur. Co., 404 F.3d at 573 (holding that it is
within the Courtâ??s discretion to convert a 12(b)(6) motion to summary judgment â??when matters outside the pleadings have been presented and accepted by the Court, and where all parties have been given a â??reasonable opportunityâ?? to present materials pertinent to the motion's disposition.â?) with Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir.1996) (holding that a Rule 12(c) motion may be converted to a motion for summary judgment â??if the court chooses to consider evidence extrinsic to the complaint and answer . . . [E]ach party shall be given a reasonable opportunity to present all material
pertinent to a summary judgment determination.). See also In re G. & A. Books, 770 F.2d 288 (2d Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986) (essential inquiry in converting Rule 12 motion to dismiss into a Rule 56 motion for summary judgment is whether parties reasonably recognize the possibility of conversion or were deprived of a reasonable opportunity to meet facts outside the pleadings.). The parties acknowledge that the pertinent facts in this case are found in the letter Defendant sent to Plaintiff and reasonably anticipate that the Court might
grant judgment based upon the partiesâ?? submissions.

Federal Rule of Civil Procedure 56(c) provides that summary judgment â??shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.â? See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). A genuine issue of material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). To defeat a supported motion for summary judgment, the adverse party â??must set forth specific facts showing that there is a genuine
issue for trial. If the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.â? Fed.R.Civ.Proc. 56(e).

II. The Fair Debt Collection Practices Act
The enacted purpose of the Fair Debt Collection Act is equally to â??eliminate
abusive debt collection practices,â? â??to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged,â? and â??to promote consistent State action.â? 15 U.S.C. § 1692(e). In separate subsections, the statute regulates the acquisition of information about a debtor and communications in connection with debt collection, see §§ 1692b, 1692c; prohibits harassment or abuse, the
use of false or misleading representations and unfair practices by debt collectors, see §§ 1692d, 1692e, 1692f; grants a debtor subject to third-party collection efforts the right to have the debt validated, see § 1692g; and provides for a private right of action and civil liability as well as authorizes enforcement and reporting by the Federal Trade Commission. See §§ 1692k, 1692l, 1692m.

In analyzing claims brought pursuant to the Fair Debt Collections Act, it is wellsettled that this Court must employ a â??least sophisticated consumerâ? standard. See, e.g., Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir.2005) (citing Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993) (canvassing other Circuits)). See also Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir.1996). The least sophisticated consumer standard was imported from Federal Trade Commission Act jurisprudence and grounded in the conclusion that the FDCPA, like other consumer-protection laws,
was â??not made for the protection of experts, but for the public â?? that vast multitude which includes the ignorant, the unthinking and the credulous.â? Clomon, 988 F.2d at 1318 (citing Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 143 F.2d 676, 679 (2d Cir.1944) (quoting Florence Manufacturing Co. v. J.C. Dowd & Co., 1 The Seventh Circuit, adopting an â??unsophisticatedâ? rather than â??least sophisticatedâ? consumer
standard noted this incoherence, observing that â??the least sophisticated consumer is not merely â??below average,â?? he is the very last rung on the sophistication ladder . . . Even assuming that he would be willing to
do so, such a consumer would likely not be able to read a collection notice with care (or at all), let alone interpret it in a reasonable fashion.â? Gammon v. GC Services Limited Partnership, 27 F.3d 1254, 1257 (7th
Cir.1994). Similarly, one might posit that literally any statement, even something as benign as â??Please pay the debt that you acknowledge you owe,â? could befuddle and confuse this least sophisticated creature. A
fortiori the importance of importing a reasonableness standard into the analysis. 2 The logical significance of an â??unreasonable misinterpretationâ? as opposed to a mere â??unreasonable interpretationâ? is not illuminated in Clomon. Suffice to say that what constitutes the â??unreasonable misinterpretationâ? of a â??least sophisticated consumerâ? is a bewildering standard leaving
room for myriad reasonable and unreasonable interpretations. 5
178 F.73, 75 (2d Cir.1910)). Notwithstanding a certain logical incoherence to
determining how the â??least sophisticated consumerâ?? would react to any conduct,1 the least sophisticated consumer standard is an objective standard which measures the questioned conduct â??by how the â??least sophisticated consumerâ?? would interpret [it],â? Russell, 74 F.3d at 34, but discards â??unreasonable misinterpretations.â? Clomon, 988 F.2d at 1319.2 The norm is crafted mindful that the statute â??(1) ensures the protection of
all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection otices.â? Id. at 1320.

 

Though it has not directly held as much, the Second Circuit has characterized the FDCPA as a â??strict liabilityâ? statute because any act that violates the regulations of the FDCPA as measured by the least sophisticated consumer standard gives rise to liability, regardless of whether the recipient of the letter suffered any actual damage as a result. See Russell, 74 F.3d at 33 (observing that the act â??imposes strict liability.â?); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2d Cir.1993) (same); Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir.2003) (â??The FDCPA . . . permits the

3 A debt collector may interpose as an affirmative defense that â??the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.â? 15 U.S.C. § 1692k(c). Though it has been suggested in this Circuit that a mistake of law is not excused by this defense, see Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989), the Circuit has not directly addressed whether the intent requirement for the § 1692k(c) defense
requires the defendant to establish an absence of general or specific intent. On that point, this Court would find persuasive the reasoning in Johnson v. Riddle, 443 F.3d 723, 728 (10th Cir.2006), which concluded that â??the only workable interpretation of the intent prong of the FDCPA's bona fide error
defense is that a debt collector must show that the violation was unintentional, not that the underlying act itself was unintentional.â? This interpretation is inconsistent with a strict liability regime.

recovery of statutory damages up to $1,000 in the absence of actual damages.â?); Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir.1998) (â??All that is required for an award of statutory damages is proof that the statute was violated, although a court must then exercise its discretion to determine how much to award, up to the $1,000.00 ceiling.â?). It may be helpful in the main to conceive of the statute as imposing strict
liability against debt collectors, even though such a standard is not to be found in the statute. But at the outer bounds of the statuteâ??s application, strict liability damages are inconsistent with both the statutorily authorized affirmative defense of § 1692k(c)3 and the statuteâ??s co-equal purpose of protecting scrupulous debt collectors. When a defendant has unintentionally made only a technical mistake, cognizable only under a standard that indulges the hypothetical, logically fallacious, least sophisticated
consumer, see supra n.1., the misapplication of statutory damages based on strict liability tort principles can give rise to questionable awards. This may have a punitive effect, despite the absence of the egregiousness typically associated with punitive damages. Cf. Parker v. Time Warner Entertainment Co., L.P., 331 F.3d 13, 22 (2d Cir.2003) (discussing â??the effects of combining a statutory scheme that imposes minimum statutory damages awards . . . with the class action mechanism that aggregates many claims.â?).

4 See, e.g., Spira et al v. Business Office Systems & Solutions, Inc., 05-CV-00622 (filed Jan. 8, 2006 by Bella Spira); Spira v. Paul Michael Marketing Associates, Inc., 04-CV-00040 (filed Jan. 7, 2004 by Devorah Spira); Spira v. Professional Claims Bureau, Inc., 06-CV-00820 (filed Feb. 24, 2006 by Eliezer
Spira); Spira v. Conta, 05-CV-05337 (filed Nov. 14, 2005 by Gitel Spira); Spira v. Retrieval Masters Creditors Bureau, Inc., 06-CV-0067 (filed Jan. 5, 2006 by Joseph Spira); Spira v. Ashwood Financial, Inc. 04-CV-04607 (filed Oct. 26, 2004 by Miriam Spira); Spira v. CBC Companies, Inc., 06-CV-01210 (filed Mar. 17, 2006 by Nathan Spira); Spira v. Business Office Systems & Solutions, Inc., 05-CV-00622 (filed Feb. 3, 2005 by Shulem Spira).

7
The interaction of the least sophisticated consumer standard with the
presumption that the FDCPA imposes strict liability has led to a proliferation of
litigation in this District. A cursory examination of the courtâ??s docket demonstrates an exponential growth in litigation under the statute from four cases in 2002, to nine cases in 2003, to twenty-two cases in 2004, to ninety-two cases in 2005 to eighty-five cases in only the first five months of this year. In the time during which this case has been under consideration, this Plaintiff has filed another case under the statute, on similar facts
under a similar theory. See Jacobson v. R.T.R. Financial Services Inc., 05-cv-04216 (filed Sept. 6, 2005). There is one family with literally scores of claims filed on their membersâ?? behalf.

4 Ironically, it appears that it is often the extremely sophisticated consumer who takes advantage of the civil liability scheme defined by this statute, not
the individual who has been threatened or misled. The cottage industry that has emerged does not bring suits to remedy the â??widespread and serious national problemâ? of abuse that the Senate observed in adopting the legislation, 1977 U.S.C.C.A.N. 1695, 1696, nor to ferret out collection abuse in the form of â??obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or
an employer, obtaining information about a consumer through false pretense,
impersonating public officials and attorneys, and simulating legal process.â? Id. Rather, the inescapable inference is that the judicially developed standards have enabled a class of professional plaintiffs.

The statute need not be applied in this manner; and indeed, this Circuit has
recognized that courts should not countenance lawsuits based on frivolous
misinterpretations or nonsensical assertions of being led astray. In Russell v. Equifax A.R.S., one of the most often quoted opinions on the â??least sophisticated consumerâ?? standard, the Circuit emphasized that â??the test is how the least sophisticated consumer-one not having the astuteness of a â??Philadelphia lawyerâ?? or even the sophistication of the average, everyday, common consumer-understands the notice he or she receives.â? Russell, 74 F.3d at 34. This understanding of the least sophisticated consumer standard points away from closely parsing a debt collection letter like a
municipal bond offering and towards a common sense appraisal of the letter.

It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least Sophisticated Consumer (â??LSCâ?) makes a $400 purchase. His debt remains unpaid and undisputed. He eventually receives a collection letter requesting payment of the debt which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that contains some minute variation from the statuteâ??s requirements, immediately exclaims â??This clearly runs afoul of the FDCPA!â? and â?? rather than simply pay what he owes â?? repairs to his lawyerâ??s office to vindicate a perceived â??wrong.â? â??[T]here comes a point
where this Court should not be ignorant as judges of what we know as men.â? Watts v. State of Ind., 338 U.S. 49, 52, 69 S.Ct. 1347, 1349 (U.S. 1949).

Without doubt, the broadly sweeping regulations of the statute protect
consumers from abusive debt collection practices. If, however, the enacted purpose of the statute is equally â??to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged,â? 18 U.S.C. 1692(e), and the courts are to give life to the admonition in Clomon that the standards are intended to protect collectors against â??bizarre or idiosyncratic interpretations of collection notices,â?988 F.2d at 1320, the statute must be applied with some circumspection.

III. Plaintiffâ??s Claim
15 U.S.C. § 1692g requires debt collectors to issue a â??validation notice,â? either in the initial communication with a consumer or within five days of that initial communication, that informs the consumer of certain rights including the right to make a written request for verification of the debt and to dispute the validity of the debt. See 15 U.S.C. § 1692g(a). Only if â??a [validation] notice . . . contains language that overshadows or contradicts other language informing a consumer of her rightsâ? does the notice violate the FDCPA. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (2d
Cir.2003) (quotations omitted). A validation notice that tracks the language of the statute is presumed to fulfill the statutory requirements. Greco v. Trauner, Cohen & Thomas, L.L.P. 412 F.3d 360, 365-66 (2d Cir.2005).â? It is overshadowing or contradictory â??if it fails to convey the validation information clearly and effectively and thereby makes the least sophisticated consumer uncertain as to her rights.â? Id. (citing Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.1998)).

In this case, the validation notice contained in the final three paragraphs of the letter closely tracks the language of 15 U.S.C. § 1692g(a), and is thus presumptively 15 U.S.C. § 1692g(a) requires that the debt collection letter include:

(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 consumerâ??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.

 

valid.5 Plaintiff contends, however, that the letter violates the statute in two ways. First, Plaintiff objects to Defendantâ??s demand for payment within 30 days. Second, Plaintiff asserts that the statute-tracking language is overshadowed by the second paragraph, in which Defendant stated â??f your payment or notice of dispute is not received in this office within 30 days, we shall recommend further action . . .â? (emphasis supplied). According to Plaintiff, this statement might lead the least sophisticated consumer to
believe that he has 30 days from the date the letter was sent, rather than 30 days from the receipt of the letter, to dispute or pay the claim.

Plaintiffâ??s first objection is ill-founded. Neither of the two cases cited by Plaintiff supports his conclusion that the collection letter he received violates the statute by demanding payment or a notice of dispute within 30 days. In both Chauncey v. JDR Recovery Corp., 118 F.3d 516 (7th Cir.1997) and Swift v. Maximus, Inc., 2004 WL 1576618 (E.D.N.Y.), the debt collector set forth conflicting statements, first demanding payment in full within 30 days, and only in separate language acknowledging that the consumer had the right to dispute the debt. See Chauncey, 118 F.3d at 518 (â??Unless we receive a check or money order for the balance, in full, within thirty (30) days from
receipt of this letter, a decision to pursue other avenues to collect the amount due will be made. Unless you notify this office within thirty (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.â?); Swift, 2004 WL 1576618 at *3 (â??The crucial sentence in the instant letter declares: â??Payment in full of this debt must be received within 30 days after the date of this notice to avoid further collection activities.â?? The reverse side contained the
validation notice.â?). In this case, Defendant issued a disjunctive demand, seeking either payment or notice of dispute within 30 days. Such a demand for immediate payment does not conflict with the statute when the Defendant also gives Plaintiff notice of his right to dispute the claim as an alternative to paying the debt in full. Cf. Savino, 164 F.3d at 86 (Defendantâ??s â??request for immediate payment did not, standing alone, violate
the FDCPA.â?).

Plaintiffâ??s second contention, that the disputed statement mproperly â??shortens
the thirty-day statutory period by demanding that payment be made within thirty-days, which could be construed by the least sophisticated consumer as being from the date of the letter, as opposed to the statutory thirty-day period which only begins from the date of the actual receipt of the letter,â? similarly fails. (Pl. Mem. at 6 (citing Cavallaro v. Law Office of Shapiro & Kleinman, 933 F.Supp. 1148 (E.D.N.Y.1996); McStay v. I.C. Systems,
308 F.3d 188 (2d Cir.2002)). Cavallaro held that a validation notice that â??stated that Plaintiff should dispute the debt â??within thirty (30) days from the date of this noticeâ?? rather than, as mandatorily required by the statute, within 30 days of receipt of the noticeâ? violated the statute.
Cavallaro, 933 F.Supp. at 1154 (emphasis supplied). Nothing in that case spoke to a demand for payment within thirty days. Though the FDCPA requires a creditor to

6 The ambiguous statement â??Please be advised that if after 30 days your account is not paid in full or otherwise closed, the account information will be forwarded to the National Credit Reporting Agencies,â? was cured by the statement on the reverse side of the letter that â??nless 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.â? McStay , 308 F.3d at 189.

advise a debtor of his right to dispute a debt within 30 days of receiving the first collection communication, nothing in that statute prohibits a debt collector from demanding immediate payment of an outstanding debt; prohibiting such a demand for immediate payment would inexplicably turn the debtor/creditor relationship upside down when a delinquent debtor refuses to make good on his obligation.

In McStay, which affirmed the district courtâ??s grant of summary judgment for the defendant debt collector, the Court observed that the collection letter contained an â??ambiguous statementâ? that might mislead about the right to dispute, but that â??any confusion created by the ambiguity on the front of the letter dissipates when read in conjunction with the language on the back.â?6 McStay, 308 F.3d at 191 (citing Russell, 74 F.3d at 34). Rather than supporting Plaintiffâ??s argument, McStay requires the conclusion that any ambiguity in the second paragraph of the letter Plaintiff received
â??dissipatesâ? when read in conjunction with the additional language in the final three paragraphs of the letter. Id.

Neither Plaintiffâ??s first contention that a demand for immediate payment violates the FDCPA, nor Plaintiffâ??s second contention that the collection letter Plaintiff received improperly shortened the 30-day statutory dispute period, is supported by the relevant case law. Even were this letter parsed with microscopic scrutiny, a belief that the least sophisticated consumer would feel harassed, abused, misled or deceived would defy credulity. The Defendantâ??s motion for summary judgment must be granted.

III. Defendantâ??s Application for Attorneyâ??s Fees and Costs
In its motion for summary judgment, Defendant has requested attorneyâ??s fees
and costs pursuant to 15 U.S.C. § 1692k(a)(3). That section provides that â??on a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneyâ??s fees reasonable in relation to the work expended and costs.â? The fact that a defendant is entitled to summary judgment does not provide the basis for such a finding; there must be evidence that the Plaintiff both knew that his claim was meritless and pursued it with the purpose of harassing the defendant. See Spira v. Ashwood Financial, Inc., 358
F.Supp.2d 150, 161 (E.D.N.Y.2005) (noting that in addition to succeeding on the merits, defendant must meet the statutory standard of proving bad faith and harassment). See also Sierra v. Foster & Garbus, 48 F.Supp.2d 393, 396 (S.D.N.Y.1999) (awarding defendantâ??s attorneyâ??s fees where â??[p]laintiff voluntarily abandoned his FDCPA claims once in order to have the case remanded back to state court, then he voluntarily discontinued its prosecution in state court, only to bring it once again in federal court.â?);
Kahen-Kashani v. National Action Financial Services, Inc., 2004 WL 1040384, at *7 (W.D.N.Y. Apr. 12, 2004) (denying claim for attorney's fees under FDCPA where defendant â??has not provided evidence of plaintiff's bad faith (as opposed to allegation of plaintiff's counsel's bad faith) . . . and even if this Court wished to attribute counsel's conduct to the client, defendant has not proved the second element, that the suit was instituted for the purpose of harassmentâ?).

The Plaintiff acknowledged, by counselâ??s admissions at argument, see United
States v. McKeon, 738 F.2d 26, 30 (2d Cir.1982), the validity of the underlying debt and that he did not feel harassed, threatened or misled by the letter. His mistaken belief that the alleged violation of the statute, arrived at merely by a strained construction of its language, constitutes per se harassment is, in essence, a complaint against the creditor for the temerity of requesting that he pay what he owes. Against this background, the Court grants the Defendantâ??s request for costs and attorneyâ??s fees pursuant to 1692k(a)(3). Defendantâ??s counsel is directed to submit the documentation required by New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir.1983).

SO ORDERED.
Dated: Brooklyn, New York
June 6, 2006.
___________/S/___________
I. Leo Glasser
United States Senior District Judge
Copies of the foregoing memorandum and order were electronically sent to:
Counsel for the Plaintiff
Lawrence Katz
Katz & Kleinman
lkatz@katzandkleinman.com
Counsel for the Defendant
David J. Gold, Esq.
djgpcesq1@aol.com

 

Thanks, PR!!!

 

I'm so happy to see so much participation from everyone. If things keep up then I may be able to collect the whole set. Yippee Skippy!

 

Thanks!

Thanks Pale Rider!

 

Haha! Good Judge!