DORA L. IRIZARRY, District Judge.
Plaintiff Eun Joo Lee ("Plaintiff"), individually and behalf of all others similarly situated, brought this putative class action against defendants Forster & Garbus LLP ("Forster") and NCOP XI, LLC ("NCOP" and, collectively with Forster, "Defendants") asserting claims pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposed the motion. For the reasons set forth below, Defendants' motion is denied.
NCOP allegedly purchased the right to collect from Plaintiff a consumer debt that Plaintiff initially owed to Capital One and was already in default. (See Am. Compl., Dkt. Entry 4, ¶¶ 17, 21.) NCOP, through its representative, Forster, first attempted to collect the debt by sending Plaintiff a form letter, dated January 31, 2011 ("Collection Letter"). (Id. ¶ 23 & Ex. A.) The reference line at the top of the Collection Letter read "AMOUNT DUE: $2,812.15," followed by reference and account numbers for the debt and a line that read, "Re: NCOP XI, LLC A/P/O CAPITAL ONE." (Id. ¶ 26 & Ex. A.) Plaintiff alleges that Defendants sent similar form letters to hundreds, if not thousands, of other consumers in New York State. (Id. ¶ 28.)
On January 30, 2012, Plaintiff filed the instant action against NCOP and Forster on behalf of herself and all others similarly situated and, on February 15, 2012, Plaintiff filed an amended complaint. In the amended complaint, Plaintiff alleges that the Collection Letter violated Sections 1692e, f, and g of the FDCPA because it failed to set forth the name of the current creditor and was deceptive. (See id. ¶ 35.) More specifically, Plaintiff claims that there is no such entity as "NCOP XI, LLC A/P/O CAPITAL ONE" and the abbreviation "A/P/O" is confusing. (Id.)
Defendants moved to dismiss the amended complaint, asserting that: i) the Collection Letter properly identifies the creditor; ii) the allegedly misleading statement is not material; iii) the Collection Letter was sent by Forster, not NCOP; and iv) Plaintiff's claims against Forster are barred by her filing for bankruptcy. (See Defs.' Mem. of Law in Supp. of Mot. to Dismiss Am. Compl., Dkt. Entry 9-1 ("Defs.' Mem.").) Plaintiff opposed the motion, asserting that: i) the Collection Letter is misleading because it fails to make it clear to whom Plaintiff owed money; ii) Defendants' failure to identify the creditor is material; iii) both NCOP and Forster are responsible for the Collection Letter; and iv) the trustee of Plaintiff's bankruptcy estate abandoned her FDCPA claims and, therefore, this action is not barred. (See Pl.'s Mem. of Law in Opp'n to Defs.' Mot. to Dismiss, Dkt. Entry 12 ("Pl.'s Opp'n").)
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing
Plaintiff claims that the Collection Letter did not comply with Sections 1692e, f, and g of the FDCPA because it did not identify the entity to which Plaintiff owed money. (Am. Compl. ¶ 35.) Section 1692e broadly prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. A communication is deceptive and, thus, in violation of 15 U.S.C. § 1692e, "when it can be reasonably read to have two or more different meanings, one of which is inaccurate." Beauchamp v. Fin. Recovery Servs., Inc., 2011 WL 891320, at *2 (S.D.N.Y. Mar. 14, 2011). Somewhat similarly, under Section 1692f, "[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f. Section 1692g specifically requires debt collectors to identify, inter alia, "the name of the creditor to whom the debt is owed" in their initial communication, or within five days of their initial communication, with the debtor. 15 U.S.C. § 1692g(a)(2).
"In this Circuit, the question of whether a communication complies with the FDCPA is determined from the perspective of the least sophisticated consumer." Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir.2008) (internal quotation marks omitted). The "least sophisticated consumer" standard is "`an objective standard, measured by how the "least sophisticated consumer" would interpret the notice received from the debt collector.'" DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir.2001) (quoting Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir.1996)). The purpose of applying the "least sophisticated consumer" standard to review claims of FDCPA violations is to: "(1) ensure the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) protect debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir.2002) (internal quotation marks and alterations omitted). "Ultimately, the critical question [in determining whether a communication violates the FDCPA] is ... whether the notice fails to convey the required information clearly and effectively and thereby makes the least sophisticated consumer uncertain as to the meaning of the message." Weiss v. Zwicker, 664 F.Supp.2d 214, 216 (E.D.N.Y.2009) (citations and internal quotation marks omitted).
This failure to identify the creditor also could have been unfair and deceptive to the least sophisticated consumer for purposes of Section 1692e and Section 1692f. See Suquilanda v. Cohen & Slamowitz, LLP, 2011 WL 4344044, at *7 (S.D.N.Y. Sept. 8, 2011) (holding that the plaintiff stated a claim for relief where creditor was misidentified in a letter). There is nothing identifying the relationship of either NCOP or Capital One to the debt and the Collection Letter does not explain why these entities appear in the letter. The court is also unaware of any commonly understood meaning of "A/P/O" and Defendants do not define the term in the Collection Letter or their motion papers.
Defendants assert that Plaintiff could not have been confused by the Collection Letter because she could have replied to contact information provided in the Collection Letter and challenged the debt or sought more information. (See Defs.' Mem. 8.) However, under the objective least sophisticated consumer standard, "it is not necessary for a plaintiff to show that she herself was confused by the communication she received; it is sufficient for a plaintiff to demonstrate that the least sophisticated consumer would be confused." Jacobson, 516 F.3d at 91.
Defendant asserts that listing Capital One in the Collection Letter would have alerted Plaintiff that Defendants were attempting to collect her credit card debt, but this argument misses the mark. Identifying the debt owed is different from identifying the current owner of the debt, especially when, like here, the original creditor sold the debt to a third party. Defendants also contend that they listed Capital One because they were attempting to comply with New York City Administrative Code § 20-493.1, which requires debt collectors to identify the original creditor in communications with the debtor. (Defs.' Mem. 8-11.) Defendants maintain that they should not be punished for complying with local laws. (Id.) This argument is based on a misreading of the amended complaint. Plaintiff does not allege that the Collection Letter was misleading simply because it provided the name of the original creditor. The Collection
Defendants fare no better insisting that any misidentification in the Collection Letter was immaterial. As an initial matter, this argument only could apply to the alleged Section 1692e and Section 1692f violations. Section 1692(g)(2) specifically requires debt collectors to identify the creditor to whom the debt is owed in the initial communication or within five days of the initial communication. There is nothing in the statute requiring the identity of the creditor to be "material" to the communication. In addition, even assuming, arguendo, that a deceptive statement must be material to violate Section 1692e and Section 1692f, failing to identify the creditor here was not immaterial as a matter of law. The entity to which a debtor owes money potentially affects the debtor in the most basic ways, such as what the debtor should write after "pay to the order of" on the payment check to ensure that the debt is satisfied.
Defendants also contend that Plaintiff's claim against NCOP is deficient because Forster sent the Collection Letter on its own. (Defs.' Mem. 13-14.) However, Plaintiffs have alleged that both Defendants drafted and sent the Collection Letter, and the court must accept these allegations as true for purposes of the instant motion. (See Am. Compl. ¶ 23.) Defendants' factual assertions otherwise are premature. In addition, "[c]ourts have concluded that where the principal is a `debt collector,' the principal may be liable for its agent's FDCPA violations." Suquilanda, 2011 WL 4344044, at *4. Plaintiff has alleged that NCOP regularly attempts to collect debts and is a debt collector, and that Forster was NCOP's agent for purposes of collecting Plaintiff's debt. (Am. Compl. ¶¶ 13-15, 19.) Therefore, Plaintiff has stated viable claims against NCOP.
Defendants assert that Plaintiff is barred from bringing claims against Forster because, following her receipt of the Collection Letter, she declared bankruptcy and did not list a FDCPA claim against Forster in the schedule of assets and liabilities ("Schedule") she filed in her bankruptcy proceeding. (Defs.' Mem. 12-13.) Plaintiff counters that she listed FDCPA claims against NCOP in the Schedule, which provided sufficient notice that the trustee could bring FDCPA claims against Forster. (Pl.'s Opp'n 13-19.)
When a bankruptcy petition is filed, the debtor must file a financial statement with the bankruptcy court, including a schedule of assets that are part of the estate. See 11 U.S.C. § 521(a)(1)(B). The estate's assets that must be listed on the schedule include "all legal or equitable interests of the debtor in property," "wherever located and by whomever held." 11
However, property that is not disclosed on the schedule remains part of the estate. Id.; 11 U.S.C. § 554(d). "Courts have held that because an unscheduled claim remains the property of the bankruptcy estate, the debtor lacks standing to pursue the claims after emerging from bankruptcy, and the claims must be dismissed." Rosenshein v. Kleban, 918 F.Supp. 98, 103 (S.D.N.Y.1996); see also In re Drexel Burnham Lambert Grp., Inc., 160 B.R. 508, 514 (S.D.N.Y.1993) ("[A]ny asset not scheduled ... remains property of the bankrupt estate, and the debtor loses all rights to enforce it in his own name."). Courts also have held that debtors are barred by the doctrine of judicial estoppel from bringing unscheduled claims. See Coffaro v. Crespo, 721 F.Supp.2d 141, 145 (E.D.N.Y.2010) ("[J]udicial estoppel is commonly invoked in order to prevent a party who failed to disclose a claim in bankruptcy proceedings from asserting that claim after emerging from bankruptcy." (internal quotation marks omitted)).
Here, Plaintiff apparently listed in the Schedule her FDCPA claim for an estimated $1,000 against NCOP, but did not list a claim against Forster,
The court agrees that it is sensible to require debtors to provide enough information
For the foregoing reasons, Defendants' motion to dismiss is denied in its entirety.
SO ORDERED.