Brady v. Credit Recovery Co.

26 F. Supp. 2d 201, 1998 U.S. Dist. LEXIS 4084, 1998 WL 151271
CourtDistrict Court, D. Massachusetts
DecidedMarch 18, 1998
DocketNo. 96-11284-JLT
StatusPublished

This text of 26 F. Supp. 2d 201 (Brady v. Credit Recovery Co.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Credit Recovery Co., 26 F. Supp. 2d 201, 1998 U.S. Dist. LEXIS 4084, 1998 WL 151271 (D. Mass. 1998).

Opinion

Memorandum

TAURO, Chief Judge.

At issue here is $110 which Plaintiff spent to clear his credit record. Prior to 1990, Plaintiffs former wife leased an apartment but failed to pay $470 in rent. Plaintiff never signed the lease in question, but was named therein as a tenant. The landlord, therefore, attempted to collect the unpaid rent from Plaintiff as well as from his former wife.1 His efforts were unsuccessful and so he hired Defendant Credit Recovery Company, a collection agency, to recover the asserted debt.

Defendant initiated the collection process by sending Plaintiff a letter requesting payment of the debt. Upon receipt of the letter, Plaintiff phoned Defendant Clark, Credit Recovery Company’s president, and told him that he was not liable for the debt because he did not sign the lease. Defendant Clark told him to submit a written letter to dispute the debt. Plaintiff neglected to do so.

Defendants sent two other letters to Plaintiff and made two phone calls to him, none of which drew a response. In 1991, Defendants reported Plaintiffs alleged debt to various credit reporting agencies.

Five years later, in February of 1996, Plaintiff applied for a mortgage to purchase a home. The mortgage company hired a credit agency, First American Credit Services, to check Plaintiffs credit record. Upon learning of the bad credit report, First American called Defendants to inquire about the unpaid debt. Defendant Clark indicated that the debt had not been paid. The mortgage company subsequently informed Plaintiff that it would not approve the mortgage until the debt was resolved.

Plaintiff immediately called Defendants and, once again, told them that he was not [203]*203liable for the unpaid rent, as he had not signed the lease. Defendants reiterated then* position that he was bound by the lease and liable for the debt.

One month later, Plaintiff’s attorney contacted Defendants’ attorney, at which time Defendants’ attorney advised Defendants to withdraw the bad credit report. Defendants promptly did so. On the same day, Plaintiff was approved for the mortgage.

Thereafter Plaintiff brought this suit against Defendants. In essence, he claims that Defendants misled First American by failing to inform it that Plaintiff disputed the debt. Plaintiff states claims under the Fail’ Debt Collection Practices Act (the “FDCPA”). He also brings pendant state law claims under M.G.L. e. 93, § 24 et seq. & § 50 et seq., and c. 93A. Plaintiff seeks damages for emotional distress, as well as statutory damages, punitive damages, and attorney’s fees.

Presently before the court is Defendants’ Motion to Dismiss Plaintiffs Complaint.

I. ANALYSIS

A. Dismissal Standard

The purpose of a motion to dismiss pursuant to Federal Rule of Civil procedure 12(b)(6) for failure to state a claim is to “test the formality of the statement of the claim for relief.” International Bank of Miami v. Banco De Economías Y Prestamos, 55 F.R.D. 180, 185 (D.P.R.1972). A defendant who presents a motion to dismiss admits, for the purposes of the motion, all of the material allegations of the complaint but “does not admit any conclusion of law or unwarranted deductions of fact made therefrom.” Id. In deciding such a motion, the court must, therefore, view all material allegations in the light most favorable to the plaintiff and resolve all doubts in his favor. Dunn v. Gazzola, 216 F.2d 709 (1st Cir.1954). The court should not dismiss a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

B. Count I: Plaintiffs FDCPA Claim

Plaintiff claims that Defendants violated a provision of the FDCPA, which proscribes debt collectors from making “false, deceptive, or misleading representations.” 15 U.S.C. § 1692e. Although Plaintiff claims that Defendants violated this anti-fraud provision in numerous ways, he argues primarily that Defendants violated it by (1) representing to the mortgage company’s credit bureau that Plaintiff owed the unpaid rent even though he had not signed the lease and, therefore, was not liable for rent, and (2) failing to disclose that Plaintiff had orally disputed the debt. The statute explicitly states, inter alia, that the failure of debt collector to disclose the disputed status of a disputed debt constitutes a “false, deceptive, or misleading representation.” See 15 U.S.C. § 1692e(8).

Defendants accept these allegations, but argue that they do not, as a matter of law, rise to the level of “false, deceptive, or misleading representations.” In support of this contention, Defendants focus on the un-eontested fact that Plaintiff did not dispute the debt in writing. Interpreting a provision of the FDCPA, now codified as 15 U.S.C. § 1692g(a)(3), courts have held that a debt collector may assume that a debt is valid unless the alleged debtor disputes the debt in writing. See Graziano v. Harrison, 950 F.2d 107, 111-12 (3rd Cir.1991) (interpreting 15 U.S.C. § 1692g(a)(3)); Sturdevant v. Jolas, 942 F.Supp. 426, 429 (W.D.Wis.1996) (same). Plaintiffs failure to deny the debt in writing permits Defendants to assume that the debt was valid. In wew of this, it cannot be said that their representation of the debt, or their failure to disclose its disputed status, was “false, deceptive, or misleading.”

Plaintiff contends that the FDCPA provision, § 1692g, relied upon by Defendants, which entitles creditors to assume the validity of undisputed debts, does not foreclose his claim. He argues that the anti-fraud provision, § 1692e(8), on which his claims are based, does not expressly require that disputes be in writing. Plaintiff cites “informal Federal Trade Commission staff letters” in support of this assertion, as well as the gen[204]*204eral principle that courts must not “read into statutory language a restriction that Congress itself did not include”. Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997) (holding that the plain language of the statute controls interpretation of “debt” in the FDCPA).

This court disagrees and concludes that the general principle entitling a debt collector to assume the validity of a debt, absent a written dispute carries, over to the anti-fraud provision of the statute.

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Related

Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Anna C. Dunn v. Ray Gazzola
216 F.2d 709 (First Circuit, 1954)
Anthony Graziano v. Michael Harrison
950 F.2d 107 (Third Circuit, 1991)
Sturdevant v. Thomas E. Jolas, P.C.
942 F. Supp. 426 (W.D. Wisconsin, 1996)
International Bank v. Banco de Economias y Prestamos
55 F.R.D. 180 (D. Puerto Rico, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
26 F. Supp. 2d 201, 1998 U.S. Dist. LEXIS 4084, 1998 WL 151271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-credit-recovery-co-mad-1998.