VIRGINIA EMERSON HOPKINS, Senior United States District Judge.
This is a civil action filed by Plaintiff Terri Dokes, individually and on behalf of all others similarly situated, against Defendants LTD Financial Services, L.P., ("LTD") and JH Portfolio Debt Equities, LLC ("JH Portfolio"). (See doc. 1). The Complaint (doc. 1) sets out one count for violation of Section 1692g(a)(2) of the Fair Debt Collection Practices Act (the "FDCPA") for failure to clearly disclose "the name of the creditor to whom the debt is owed." (Id. at 4-5) (quoting 15 U.S.C. § 1692g(a)(2)). This count arises out of Defendants' attempt to collect an alleged debt from Plaintiff through a debt collection letter. (Id. at 1-3).
Before the Court is Defendants' joint Motion To Dismiss (the "Motion") the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (Doc. 14). Defendants filed their Motion on July 5, 2018, and Plaintiff filed her opposition (doc. 19) to the Motion on August 9, 2018.
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. See FED. R. CIV. P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). "[W]hen ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff . . . ." Am. United Life Ins.
Thus, "a court considering a motion to dismiss can . . . begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. After separating out these legal conclusions, a court can identify if there are any well-pleaded factual allegations. See id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether [the complaint survives the motion to dismiss]." Id.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While "[t]he plausibility standard is not akin to a `probability requirement,'" the plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (stating that the "[f]actual allegations must be enough to raise a right to relief above the speculative level"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679, 129 S.Ct. 1937 (second alteration in original) (quoting FED. R. CIV. P. 8(a)(2)).
At issue in this case is a debt collection letter (the "Letter") that is attached to Plaintiff's Complaint as Exhibit B. (Doc. 1-2). The Letter was sent by LTD to Plaintiff. (See id. at 1). The right side of the Letter's heading contains LTD's name and contact information and the date. (See id.) The left side of the Letter's heading contains Plaintiff's name and address and two boxes. (See id.) The bottom box contains an LTD reference number and the amount of the debt. (See id.) The top box contains the following information:
(See id.) The body of the Letter contains the following text:
(See id.)(emphasis added).
Plaintiff's Complaint contains the following well-pleaded factual allegations:
(See doc. 1 at 3-4, ¶¶ 8-10, 13). Plaintiff then alleges that Defendants violated Section 1692g(a)(2) of the FDCPA because "Defendants' form collection letter . . . failed to effectively identify the current creditor to whom the debt was owed." (Id. at 4, ¶ 16) (citations omitted).
Section 1692g(a)(2) of the FDCPA requires that in its "initial communication with a consumer in connection with the collection of any debt" or within
For claims under Section 1692g, "the Eleventh Circuit has not definitively ruled on the standard" that should be used. Lait v. Med. Data Sys., Inc., No. 17-378, 2018 WL 1990513 at *3, 2018 U.S. Dist. LEXIS 72908 at *7 (M.D. Ala. Apr. 26, 2018), appeal docketed, No. 18-12255 (11th Cir. May 25, 2018). In Leonard, the Eleventh Circuit acknowledged that it has applied the least-sophisticated-consumer standard to claims under other sections of the FDCPA and stated that it saw "no reason to disagree with" the other circuits that have also applied the least-sophisticated-consumer standard to claims under Section 1692g. Leonard, 713 F. App'x at 882 n.2. However, the Eleventh Circuit did "not decide the issue" of whether the least-sophisticated-consumer standard applies to claims under Section 1692g because "both parties [in Leonard] assume[d] that the standard applies to [Section] 1692g," and the Eleventh Circuit "[made] that assumption as well." Id. Similarly, this Court "need not and [does] not decide" in this case whether the least-sophisticated-consumer standard applies to claims under Section 1692g. See id. Just like the situation in Leonard, here both parties assume that the least-sophisticated-consumer standard applies to claims under Section 1692g (see doc. 14 at 5; doc. 19 at 6), and the Court will "make that assumption as well." See Leonard, 713 F. App'x at 882 n.2.
Under the least-sophisticated-consumer standard, "[t]he inquiry is not whether the particular plaintiff-consumer was deceived or misled; instead, the question is `whether the `least sophisticated consumer' would have been deceived' by the debt collector's conduct." Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1177 n.11 (11th Cir. 1985)). "The `least-sophisticated consumer' standard takes into account that consumer-protection laws [like the FDCPA] are `not made for the protection of experts, but for the public . . . .'" Id. at 1258-59 (quoting Jeter, 760 F.2d at 1172-73 (internal quotation marks omitted)). However, "`[t]he least sophisticated consumer' can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010) (quoting Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)). Furthermore,
"Generally, the question of whether the least sophisticated consumer would be
The Motion requires the Court to address one main issue: whether the Letter clearly stated "the name of the creditor to whom the debt is owed" in light of the least-sophisticated-consumer standard. 15 U.S.C. § 1692g(a)(2); see also Leonard, 713 F. App'x at 882-83. Defendants argue that the Letter clearly stated the name of the creditor to whom the debt was owed under the least-sophisticated-consumer standard because the Letter clearly identified JH Portfolio as the current creditor and Defendants were not required to explain the difference between the original creditor and the current creditor or to make any other explanations. (Doc. 14 at 6-7). The Court agrees with Defendants that the Letter clearly stated the name of the creditor to whom the debt was owed under the least-sophisticated-consumer standard and thus complies with Section 1692g(a)(2).
Because neither the Court nor the parties have identified a case that is exactly on point, the Court will first analyze the Letter from the perspective of the least sophisticated consumer. Then, the Court will analyze the case law to determine if the Letter is more similar to debt collection letters that have been found to comply with Section 1692g(a)(2) or more similar to debt collection letters that have been found not to comply with Section 1692g(a)(2).
The Court will begin its analysis of the Letter just as the least sophisticated consumer would—with "a rudimentary amount of information about the world and a willingness to read a collection notice with some care." LeBlanc, 601 F.3d at 1194 (quoting Clomon, 988 F.2d at 1319). In other words, the Court will interpret the Letter in a "reasonable[ ]" manner and not in a "bizarre or idiosyncratic manner." Id. (quoting Nat'l Fin. Servs., Inc., 98 F.3d at 136). Interpreting the Letter as the least sophisticated consumer would, the Court finds that the Letter clearly conveys "the name of the creditor to whom the debt is owed," 15 U.S.C. § 1692g(a)(2), under the least-sophisticated-consumer standard.
In the Letter, only three entities are mentioned, with each entity's role being clearly identified: (1) JH Portfolio, which is identified as the current creditor; (2) Comenity Bank, which is identified as the original creditor; and (3) LTD, which is identified as a debt collector. (Doc. 1-2 at 1). From these identifications, only "a rudimentary amount of information about the world and a willingness to read a collection notice with some care," LeBlanc, 601 F.3d
From these two options, the least sophisticated consumer should be able to determine that JH Portfolio, the current creditor, is the creditor to whom the debt is owed for at least three reasons. First, the least sophisticated consumer should be able to understand (and know the difference between) the words "current" and "original" because these words "are plain-English words, not specialized terms that could confuse the ordinary debtor." Zuniga v. Asset Recovery Sols., No. 17-5119, 2018 WL 1519162 at *4, 2018 U.S. Dist. LEXIS 51063 at *9 (N.D. Ill. Mar. 28, 2018). As the district court in Zuniga stated, "[i]t is unlikely that a significant fraction of even the most unsophisticated consumers, possessing `reasonable intelligence,' would fail to understand the difference between `original' and `current,' or fail to understand that the `current' creditor is the creditor to whom the debt is currently owed." Id. (citation omitted).
This Court agrees with the Zuniga court's reasoning and conclusion and notes
Finally, because the Letter must be analyzed "as a whole," Orr, 941 F.Supp.2d at 1382 (quoting Farley, 1999 WL 965496, at *3), nothing in the rest of the Letter should confuse the least sophisticated consumer regarding JH Portfolio's being the creditor to whom the debt is owed. Plaintiff, however, argues that the Letter was "materially confusing" (doc. 19 at 2) because its first sentence—"Your account with the
Plaintiff, however, refutes the notion that the least sophisticated consumer's understanding of the words "original" and "current" should allow her to understand that LTD "was collecting the debt on behalf of the current creditor." (Doc. 19 at 12) (citing doc. 14 at 12). Plaintiff cites Long v. Fenton & McGarvey Law Firm P.S.C., 223 F.Supp.3d 773 (S.D. Ind. 2016), which Plaintiff asserts "is factually most similar to [the Letter,]" for the proposition that when a "collection letter involv[es] an original creditor, debt-buyer, and collector, `a significant fraction of the population could question whether the current creditor is [the debt buyer], [the collector], or [the original creditor] without requiring a bizarre, peculiar, or idiosyncratic interpretation.'" (Doc. 19 at 12) (last three alterations in original) (citing Long, 223 F.Supp.3d at 778-79 (citations omitted)). Long, however, is easily distinguishable. The letters in Long stated, "Please be advised that Fenton & McGarvey Law Firm, P.S.C. has been retained by Jefferson Capital Systems, LLC to collect its account with you," and "declared that the `original creditor' for the debts was Comenity Bank." Long, 223 F.Supp.3d at 775. "The body of the [letters in Long] made no other references to Jefferson Capital, Comenity Bank, or Fenton & McGarvey." Id. It was based on these facts that the Long court concluded that "[b]ased upon the text of the [l]etters,
Thus, upon analyzing the Letter, the Court finds that the least sophisticated
While the Court has found no cases analyzing debt collection letters
As Defendants point out, the Letter is very similar to the letter in Zuniga. (See doc. 14 at 8-9). Zuniga involved a letter that "plainly identified the entity to whom the debt was owed by using the words `Current Creditor' right next to Bureaus Investment Group Portfolio No. 15 LLC." Zuniga, 2018 WL 1519162, at *4, 2018 U.S. Dist. LEXIS 51063, at *9. The letter in Zuniga "also identified the original creditor with (not surprisingly) the phrase `Original Creditor.'" Id. In its analysis, the Zuniga court stated that "there [were] no confusingly named non-creditors sprinkled about the letter to muddy the waters, and no opaque technical terms: the letter to Zuniga identified the `original creditor' and the `current creditor,'
On the other hand, the Letter can be distinguished from the letters in the cases in which the plaintiff's claim survived a motion to dismiss despite the letters explicitly identifying the "current creditor." The letters in these cases had additional confusing elements, namely the identification of a non-creditor client of the debt collector, that are not found in the Letter. See Pardo, 2015 WL 5607646, at *3, 2015 U.S. Dist. LEXIS 125526, at *8-9; Deschaine, 2013 WL 12121197, at *2, 2013 U.S. Dist. LEXIS 31349, at *4-5. Thus, Plaintiff's reliance on these cases is misplaced. Plaintiff primarily relies on Pardo for the proposition that explicitly identifying the "current creditor" is not sufficient and that a debt collection letter must also "include a description of the collecting entities' relationship." (Doc. 19 at 13). However, Pardo does not stand for this proposition. Instead, Pardo stands for the proposition that if a letter explicitly identifies a "current creditor" but then also identifies a different entity as the debt collector's "client" who is "willing to accept payment" without "any explanation of the . . . relationship" between the current creditor and that client, the plaintiff's claim is able to survive a motion to dismiss. See Pardo, 2015 WL 5607646, at *3, 2015 U.S. Dist. LEXIS 125526, at *8-9. In fact, the Pardo court stated that if the letter had only identified the "Current Creditor," without also identifying the client who was "willing to accept pament," the court may have "indeed conclude[d] that as a matter of law the dunning letter was not confusing." See id. at *3, 2015 U.S. Dist. LEXIS 125526 at *8. Thus, in Pardo, the reason that an explanation of the relationship between the parties was needed was because another entity (the debt collector's client) was identified as an entity that was "willing to accept payment," and this created confusion as to the identity of the creditor to whom the debt was owed. See id. at *3, 2015 U.S. Dist. LEXIS 125526 at *8-9. The Letter, however, does not identify any additional entity that is "willing to accept payment." (See doc. 1-2 at 1). Thus, the Letter's explicit identification of
In addition to relying on cases like Pardo that involve letters that explicitly identify the "current creditor," Plaintiff also relies on cases that do not explicitly identify the "current creditor" in order to support her argument that the Letter did not sufficiently state the name of the creditor to whom the debt was owed. Plaintiff primarily relies on Janetos, 825 F.3d 317, using it to argue that she "has presented the exact type of collection letter that has been repeatedly held to state a claim for relief." (Doc. 19 at 9). Janetos, however, is clearly distinguishable, and the Letter is certainly not the "exact type" of letter as the letters in Janetos. The letters in Janetos, unlike the Letter, did not "explicitly identify [the creditor to whom the debt was owed, which was] Asset Acceptance[,] as the
Thus, the Letter is much more similar to the debt collection letters in cases such as Zuniga, in which the letters clearly conveyed the name of the creditor to whom the debt was owed, than the debt collection letters in cases such as Pardo and Janetos, in which the letters did not clearly convey the name of the creditor to whom the debt was owed. This supports the Court's analysis of the Letter and its finding that the Letter clearly conveys to the least sophisticated consumer the name of the creditor to whom the debt was owed.
The facts of this case are simple. Plaintiff received a debt collection letter that clearly identified JH Portfolio as the current creditor. (See doc. 1-2 at 1). The only other entities mentioned in the letter were Comenity Bank, which was clearly identified as the original creditor, and LTD, which was clearly identified as a debt collector. (See id.) Plaintiff then brought suit against Defendants, claiming that the Letter "violates [Section] 1692g(a)(2) of the FDCPA because it failed to effectively
For the reasons stated above, the Motion is
Further, Plaintiff argues that Defendants' reliance on Leonard, 713 F. App'x 879, and Lait, 2018 WL 1990513, 2018 U.S. Dist LEXIS 72908, which Defendants cite when discussing the least-sophisticated-consumer standard for claims under Section 1692g, is misplaced because these cases are "factually distinguishable" and thus "are not helpful here." (Doc. 19 at 8 n.2). Because the Court also cites Leonard and Lait when discussing the least-sophisticated-consumer standard, the Court will address Plaintiff's argument.
Despite Plaintiff's argument to the contrary, the Court's (and Defendants') citations to Leonard and Lait when discussing the least-sophisticated-consumer standard are not misplaced. It is basic knowledge in the law that cases, even if the facts are slightly distinguishable, can still correctly state the law and be cited as authority.
Additionally, Plaintiff not only herself cites Leonard when discussing the least-sophisticated-consumer standard, but she also implies that Defendants did not but should have cited Leonard. (See id. at 2) ("Defendants assert that their letter was clear, and that the FDCPA merely requires that a form debt collection letter `contain' the name of the creditor to whom the debt is owed. (Dkt. 14 at p. 7). However, as multiple appellate courts have held, including the Eleventh Circuit Court of Appeals, `[t]o satisfy § 1692g(a), the debt collector's notice must state the required information clearly enough that the recipient is likely to understand it',
Additionally, Plaintiff's argument regarding Defendants' (and thus the Court's) reliance on Lait also fails. The Court and Defendants correctly cite Lait to acknowledge that "[t]he Eleventh Circuit has not definitively held that the least sophisticated consumer standard applies to claims made under 15 U.S.C. § 1692g." (See doc. 14 at 5) (citing Lait, 2018 WL 1990513, at *3, 2018 U.S. Dist. LEXIS 72908, at *7). This is a statement of law that Plaintiff omitted from her opposition. Thus, instead of incorrectly relying on Lait, the Court and Defendants correctly cite Lait for this proposition.
Furthermore, although some courts, including the Seventh Circuit in a later opinion, either state or imply that the unsophisticated-consumer standard and the least-sophisticated-consumer standard are different standards, these courts differentiate the standards by saying that the least-sophisticated-consumer standard, unlike the unsophisticated-consumer standard, is tied to "the very last rung on the sophistication ladder." See, e.g., Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000) ("[W]e have rejected the `least sophisticated debtor' standard used by some other circuits because we don't believe that the unsophisticated debtor standard should be tied to `the very last rung on the sophistication ladder.'" (quoting Gammon, 27 F.3d at 1257)); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997) ("The Seventh Circuit
has adopted an `unsophisticated consumer' standard that serves the same purposes and apparently would lead to the same results [as the least-sophisticated-consumer standard] in most cases, except that [the unsophisticated-consumer standard] is designed to protect consumers of below average sophistication or intelligence without having the standard tied to `the very last rung on the sophistication ladder.'" (quoting Gammon, 27 F.3d at 1257)); Marquez v. Weinstein, Pinson & Riley, P.S., No. 14-739, 2015 WL 4637952, at *3 (N.D. Ill. Aug. 4, 2015) ("The unsophisticated consumer test differs from the least sophisticated consumer test that other circuits use. Unlike the least sophisticated consumer, the unsophisticated consumer is not `tied to `the very last rung on the sophistication ladder.''" (footnote and citation omitted) (quoting Pettit, 211 F.3d at 1060)). This apparent difference, however, is not true: the least-sophisticated-consumer standard itself is not tied to "the very last rung on the sophistication ladder." In fact, this was the Seventh Circuit's central message in Gammon: the Seventh Circuit wanted to "use the term, `unsophisticated,' instead of the phrase, `least sophisticated,' to describe" the standard because it noted that the least-sophisticated-consumer standard included an "element of reasonableness" and thus did not actually involve analyzing a debt collection letter from the viewpoint of the
Id. Despite its assertion that it has rejected the least-sophisticated-consumer standard, the Seventh Circuit's description of its unsophisticated consumer is very similar to the Eleventh Circuit's description of the least sophisticated consumer. Just as the Seventh Circuit's unsophisticated consumer "possesses rudimentary knowledge about the financial world" and "is wise enough to read collection notices with added care," id., the Eleventh Circuit's least sophisticated consumer "can be presumed to posses a rudimentary amount of information about the world and a willingness to read a collection notice with some care." LeBlanc, 601 F.3d at 1194 (quoting Clomon, 988 F.2d at 1319). Furthermore, just as the Seventh Circuits's unsophisticated consumer "does not interpret [debt collection letters] in a bizarre or idiosyncratic fashion," Pettit, 211 F.3d at 1060, the Eleventh Circuit's least sophisticated consumer does not interpret debt collection letters bizarrely or idiosyncratically. See LeBlanc, 601 F.3d at 1194 ("[The least-sophisticated-consumer standard] has an objective component in that `[w]hile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.'" (second alteration in original) (quoting Nat'l Fin. Servs., Inc., 98 F.3d at 136)). This extreme similarity between the unsophisticated consumer and the least sophisticated consumer is not surprising; despite stating that it has rejected the least-sophisticated-consumer standard, the Seventh Circuit, when describing its unsophisticated consumer, cites three cases that use the least-sophisticated-consumer standard, two of which the Eleventh Circuit also cites when describing its least sophisticated consumer. See Chaudhry, 174 F.3d at 408-09 (discussing the "least sophisticated debtor" standard); Nat'l Fin. Servs., Inc., 98 F.3d at 136 (discussing the "least sophisticated consumer" standard); Clomon, 988 F.2d at 1319 (discussing the "least-sophisticated-consumer standard").
Thus, given these similarities, it seems that the primary difference between the unsophisticated-consumer standard and the least-sophisticated-consumer standard is that the unsophisticated-consumer standard, unlike the least-sophisticated-consumer standard, explicitly states that "a statement will not be confusing or misleading unless a significant fraction of the population would be similarly misled." Pettit, 211 F.3d at 1060 (citing Gammon, 27 F.3d at 1260 (Easterbrook, J., concurring)). However, this requirement that a significant fraction of the population be misled is entirely consistent with the least-sophisticated-consumer standard. Judge Easterbrook's reasoning for this requirement was based on the notion that the least sophisticated consumer would believe almost anything. See Gammon, 27 F.3d at 1259 (Easterbrook, J., concurring) ("The `least sophisticated consumers' actually believe that 12 Senators are from other planets." (footnote omitted)). Judge Easterbrook thus reasoned that "if showing a handful of misled debtors [instead of showing a signification fraction of the population] were enough, [the Seventh Circuit] would as a practical matter be using the `least sophisticated consumer' doctrine." Id. at 1260. However, while it is true that the
Overall, even if the unsophisticated-consumer standard and the least-sophisticated-consumer standard are not identical, they are extremely similar. Because the Zuniga court found that the Seventh Circuit's unsophisticated consumer would not be confused by the "plain-English words" "original" and "current," Zuniga, 2018 WL 1519162, at *4, 2018 U.S. Dist. LEXIS 51063, at *9, the Court, based on Zuniga and its own due consideration, finds that the Eleventh Circuit's least sophisticated consumer would also not be confused by the words "original" and "current." Furthermore, when discussing the case law, the Court will treat cases that use the unsophisticated-consumer standard as persuasive without repeating its comparison of the unsophisticated-consumer standard and the least-sophisticated-consumer standard.
Furthermore, because the Court finds that the Letter clearly conveys the name of the creditor to whom the debt was owed and is not made confusing by its first sentence or by Plaintiff's unfamiliarity with JH Portfolio, the Court rejects Plaintiff's argument that the Letter, to be clear, required additional information such as "[a] simple statement that LTD represented JH Portfolio or that JH Portfolio had bought the debt." (See id. at 11 n.3) (quoting doc. 1 at 3, ¶ 11).
