ERIC N. VITALIANO, District Judge.
Plaintiff Sohail Qureshi initiated this action against Vital Recovery Services, Inc. ("VRS"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Defendant moves to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 10. For the reasons set forth below, the motion to dismiss is granted.
On August 18, 2017, Qureshi received a consumer debt collection letter from VRS, offering to resolve an outstanding debt of $888.84 for "80% of the total balance [owed] on [the] account," that is, for $711.07. Dkt. 1-2 (the "letter"). The letter set forth an "account summary" listing the following amounts: $888.84 in "principal amount due," $0 each in "interest due" and "misc[ellaneous] fee due," and $888.84 in "total balance due." Id.; see also Dkt. 1 ("Compl.") ¶¶ 10-12. According to Qureshi, the letter misrepresented the amount and character of the alleged debt and conveyed an implicit threat to coerce him to pay it. Essentially, after alleging that no interest or miscellaneous fees were accruing on his account, and that VRS was not entitled to charge any, Qureshi contends that, notwithstanding reality to the contrary, on these misrepresentations, surely, "[t]he least sophisticated consumer would understand that charges and fees would begin to accrue on the account if he did not pay." Id. ¶¶ 13-20. He alleges violations of § 1692e of FDCPA on behalf of himself and the putative class of persons in receipt of VRS's standardized form letter. Id. ¶ 22; see also id. at 5-9.
In order to survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted).
Though not likely intended to be the well-spring of innumerable litigation, FDCPA was enacted to
15 U.S.C. § 1692(e). Of its myriad protections, Qureshi invokes two here: § 1692e, which prohibits the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt;" and, addressed for the first time in his opposition papers, §1692g, which requires a debt collector "to send the consumer a written notice containing the amount of the debt." See Dkt. 12 ("Pl.'s Opp'n") at 2, 9. Offering insight regarding the language of the complaint, whether a collection letter complies with these provisions is determined from the perspective of the, unflatteringly, "least sophisticated consumer." Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). Such an individual may lack "the astuteness of a `Philadelphia lawyer' or even the sophistication of the average, everyday, common consumer, but is neither irrational nor a dolt." Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010) (citation omitted). He is "presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (internal citations omitted).
Section 1692e prohibits, inter alia, false representations as to "the character, amount, or legal status of any debt," § 1692e(2)(A); "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken," § 1692e(5); and "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer," § 1692e(10). Under the least sophisticated consumer standard, a collection letter "can be deceptive" if it is "open to more than one reasonable interpretation, at least one of which is inaccurate." Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 85 (2d Cir. 2018) (internal citations and quotation marks omitted). While this standard is broad, § 1692e is nevertheless limited by the materiality requirement, under which "a false statement is only actionable under the FDCPA if it has the potential to affect the decision-making process of the least sophisticated [consumer]." Id. (quoting Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015)). Consequently, a plaintiff may proceed on a § 1692e claim only where the false statement "would frustrate a consumer's ability to intelligently choose his or her response," not where it conveyed "mere technical falsehoods." Id. at 86.
Instructively, given the purely legal nature of this analysis "[w]here, as here, an FDCPA claim is based solely on the language of a letter to a consumer, the action may properly be disposed of at the pleadings stage." Dick v. Enhanced Recovery Co., LLC, No. 15-CV-2631 (RRM) (SMG), 2016 WL 5678556, at *3 (E.D.N.Y. Sept. 28, 2016) (granting motion to dismiss § 1692e claim based on collection letter) (citing Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 365 (2d Cir. 2005)).
In the complaint, Qureshi alleges first, that the letter misrepresents the amount and character of the debt, in violation of § 1692e(2)(A), by implying that interest and miscellaneous fees might accrue even though no such fees were contractually permissible; second, that the letter thereby threatens to take action that VRS could not legally take or did not intend to take, in violation of § 1692e(5); and third, that these alleged misrepresentations and implicit threats constitute the use of deceptive means to collect the debt, in violation of § 1692e(10).
The first claim is utterly meritless. The letter sets forth the principal amount of the debt, which is $888.84; a $0 balance for interest; a $0 balance for miscellaneous fees; and, since there is no outstanding charge besides principal, a total balance due of $888.84. Qureshi does not contest the accuracy of these numbers but insists that the inclusion of zero-balance line items somehow misrepresented the amount of the debt. Taking this argument at face value, the Court notes that the least sophisticated consumer standard does not assume the absence of all mathematical knowledge, including the concept of zero and its application to grade-school arithmetic. Since Qureshi does not contend that the amount referenced in the letter is incorrect, he fails to allege a misrepresentation as to the amount of the debt. See Dick, 2016 WL 5678556, at *7 ("To state a claim under section 1692e(2) a consumer must allege that the amount sought by the collector is incorrect.").
Turning now to any mischaracterization in the letter, Qureshi does not allege that the letter demands payment of a debt that he does not owe. See Barrios v. Enhanced Recovery Co., LLC, No. 15-CV-5291 (ILG), 2018 WL 5928105, at *4 (E.D.N.Y. Nov. 13, 2018) ("The premise of such liability is not that the debtor has attempted to collect from the wrong person per se, but that they have made a false representation about the character of the debt—namely, about the person who owes it."); Wong v. Alternative Claims Mgmt., LLC, No. 17-CV-3133 (ER), 2017 WL 5635533, at *3 (S.D.N.Y. Nov. 22, 2017) (denying motion to dismiss where plaintiff alleged debt collector "sent him a notice requesting a payment that he did not, in fact, owe"); see also Rhone v. Med. Bus. Bureau, LLC, 915 F.3d 438, 440 (7th Cir. 2019) (discussing absence of case law defining "character" and concluding that letter aggregating multiple debts owed to a single creditor "does not affect the genesis, nature, or priority of the debt and so does not concern its character"). Accordingly, Qureshi's first FDCPA claim fails.
For similar reasons, Qureshi's implicit threat claim, under § 1692e(5), and catchall claim, under § 1692e(10), also fail. Absolutely nothing in the letter implies that VRS might add interest and fees to induce him to pay, and, as plaintiff himself alleges, there was no contractual basis for VRS to pursue them. See Beauchamp v. Fin. Recovery Servs., Inc., No. 10-CV-4864 (SAS), 2011 WL 891320, at *1 (S.D.N.Y. Mar. 14, 2011) (denying motion to dismiss where language that interest and other charges "may or may not be applicable" constituted threat to take action that debt collector did not intend to take); Dick, 2016 WL 5678556, at *6 ("Such threats have been found where an assertion of a then-current state of affairs is coupled with a temporal qualification."). The mere itemization of a $0 balance for interest and fees has no coercive import. Since Qureshi's § 1692e(10) claim, as pleaded, is contingent on the assertions that the letter misrepresented the debt and carried an implied threat, the failure to allege those violations is fatal as well.
Having failed to identify a material misrepresentation or a threat to take improper action, plaintiff muses, "Why couldn't an unsophisticated consumer logically conclude that additional charges may incur if the current balance is listed as zero?" Pl.'s Opp'n at 8. Such a "conclusion" from a zero charge, of course, would be far from "logical." Then, seeking to add a second floor to his house of cards, Qureshi contends that the least sophisticated consumer "may assume ... that charges were not added but could be added in the future if he did not pay." Id.
Bluntly, this reasoning ignores the total absence of language in the letter suggesting even the slightest possibility that additional charges might accrue—without which plaintiff's proposed reading is both idiosyncratic and irrational. See Rozier v. Fin. Recovery Sys., Inc., No. 10-CV-3273 (DLI) (JO), 2011 WL 2295116, at *3 (E.D.N.Y. June 7, 2011) (denying motion to dismiss where letter stated that "interest, late charges, and other charges may or may not be applicable to this account" (emphasis added)); Weiss v. Zwicker & Assocs., P.C., 664 F.Supp.2d 214, 217 (E.D.N.Y. 2009) (granting plaintiff summary judgment where letter stated that "balance may include additional charges including delinquency charges ... if said charges are permissible in accordance with the terms of [the parties'] agreement" (emphasis added)).
Furthermore, to the extent that Qureshi contends debt collectors must advise consumers that no interest or other fees are accruing, that argument has been explicitly rejected by the Second Circuit.
This Court is not the first to draw this conclusion.
Having fallen short of his objective under § 1692e, Qureshi attempts to change tack through the medium of his opposition papers, asserting an alternative § 1692g claim.
Then, in a blind-side hit sharp enough to induce whiplash, Qureshi argues that
Pl.'s Opp'n at 9 (emphasis added). Astoundingly, there is no basis to assume that VRS was entitled to assess any interest or fees, and that, as a result, the balance due on Qureshi's debt could possibly vary. On the contrary, the core of this lawsuit is plaintiff's misguided contention that VRS was required to affirmatively advise him that no fees were accruing so that he was not mislead by the inclusion of $0 balance line items for interest and fees. Although that premise has proven fundamentally flawed, as discussed above, that does not enable plaintiff to radically overhaul his theory of liability at the eleventh hour, in direct contradiction to factual allegations already pleaded in the complaint.
Furthermore, this new § 1692g claim would fail even if it did not entail a 180-degree turn from the factual allegations he avers in the pleadings. Section 1692g requires the disclosure of the amount of the debt—meaning "the total, present quantity of money that the consumer is obligated to pay." Kolbasyuk, 918 F.3d at 240. The letter discloses the "total balance due," and Qureshi does not allege that this amount was an estimate subject to additional fees or otherwise inaccurate. See Carlin v. Davidson Fink LLP, 852 F.3d 207, 211 (2d Cir. 2017) (finding violation of § 1692g where fine print stated that total amount due "may include estimated fees, costs, additional payments and/or escrow disbursements ... which are not yet due" without specifying what those fees were or how they were calculated). As the Second Circuit explained in Taylor, § 1692g is to be read "in harmony" with § 1692e. Taylor, 886 F.3d at 215. As discussed above, because the letter accurately stated the amount of the debt owed, it did not violate either provision. Accordingly, the motion to dismiss must be granted.
For the reasons set forth above, the motion to dismiss is granted in its entirety. The Clerk of Court is directed to enter judgment accordingly and to close this case.
So Ordered.
