McCray v. Deitsch & Wright, P.A.

343 F. Supp. 3d 1209
CourtDistrict Court, M.D. Florida
DecidedOctober 26, 2018
DocketCase No.: 8:18-cv-731-EAK-SPF
StatusPublished
Cited by6 cases

This text of 343 F. Supp. 3d 1209 (McCray v. Deitsch & Wright, P.A.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCray v. Deitsch & Wright, P.A., 343 F. Supp. 3d 1209 (M.D. Fla. 2018).

Opinion

ELIZABETH A. KOVACHEVICH, UNITED STATES DISTRICT JUDGE

THIS CAUSE is currently before the Court on Defendant Deitsch and Wright, P.A.'s Motion for Judgment on the Pleadings ("Motion ") (Doc. 21) and Plaintiff Desseri McCray's response in opposition to the same ("Response ") (Doc. 23). The Motion is GRANTED IN PART AND DENIED IN PART .

I. Background 1

On January 8, 2015, Plaintiff incurred a debt for personal medical services provided to Plaintiff by Excel Medical Imaging, P.L. (Doc. 1, at ¶ 20); (Doc. 1-1). Defendant is a third-party debt collector with which Excel Medical Imaging, P.L. placed Plaintiff's account for collection. (Doc. 1 at ¶¶ 21-22); (Doc. 1-1). In connection with collecting on Plaintiff's debt, on October 26, 2017, Defendant sent Plaintiff a collection notice ("First Collection Notice "). Id. at ¶ 23; (Doc. 1-1). This collection notice was Defendant's first communication to Plaintiff with respect to the debt. (Doc. 1, at ¶ 25). The notice explained that Plaintiff's debt with Excel Medical Imaging, P.L. in the amount of $1,743.75 had been referred to Defendant for collections. (Doc. 1-1). The notice further explained that Defendant had been "authorized to use any means at [its] disposal, within the limits of the law, necessary to collect the full balance." Id. The notice requested that Plaintiff contact Defendant via telephone to make payment, which Defendant explained could be made by credit card, check, or *1212money order. Id. The notice advised that "if [Defendant] did not receive payment promptly [it would] be forced to take additional action to [collect the debt]." Id. The notice further advised:

This is an attempt to collect a debt and any information obtained will be used for that purpose. 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; [sic] assume this debt is valid. If you do 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 judgment and mail you a copy of such judgment or verification. If you request, in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Id. Because Plaintiff is disabled and on a fixed income, she was unable to remit payment of the debt. (Doc. 1, at ¶ 31).

Subsequently, on December 20, 2017, Defendant sent Plaintiff a second collection notice ("Second Collection Notice ").2 Id. at ¶ 32; (Doc. 1-2). Defendant's Second Collection Notice was, in all relevant respects, identical to its First Collection Notice. Compare (Doc. 1-1) with (Doc. 1-2). Prior to sending the Second Collection Notice, Defendant had not taken any additional action to collect on the debt. (Doc. 1, at ¶ 35).

Plaintiff commenced this putative class action by filing a two-count, civil complaint on March 27, 2018 pursuant to the Fair Debt Collection Practices Act ("FDCPA ") (the "Act "), 15 U.S.C. § 1692, et seq.See generally (Doc. 1). Count I alleges that the threat of additional action and demand for immediate payment in Defendant's First Collection Notice "overshadowed" Plaintiff's right to dispute and request verification of the debt within thirty days, violating 15 U.S.C. § 1692g(b). (Doc. 1, at ¶¶ 63-79). Count II alleges that, by stating that Plaintiff had an additional thirty-day period in which she could dispute the debt, Defendant's Second Collection Notice is misleading or may confuse the "least sophisticated consumer" as to his or her rights, violating 15 U.S.C. § 1692e(10) ("Verification Period Violation " claim). (Doc. 1, at ¶¶ 80-85). Count II further alleges that, by advising that Defendant had been authorized to use any legal means necessary to collect the debt, and that, if it did not receive prompt payment, Defendant would take "additional action" to collect the debt, Defendant's First Collection Notice conveyed a "false sense of urgency," violating 15 U.S.C. § 1692e(10), since Defendant did not actually take subsequent legal action but, instead, simply sent Plaintiff the Second Collection Notice two months later ("False Sense of Urgency " claim). (Doc. 1, at ¶¶ 86-90).

After an agreed upon extension of time, Defendant filed its answer and affirmative defenses to Plaintiff's complaint on May 23, 2018, denying the bulk of Plaintiff's allegations and raising one affirmative defense to liability. See generally (Doc. 13). Defendant then filed its Motion on June 27, 2018. See generally (Doc. 21). Through its Motion, Defendant contends that it is entitled to judgment as a matter of law because neither of its Collection Notices violated Section 1692g(b) or 1692e(10). See generally (Doc. 21). Specifically, Defendant argues that nothing in the First Collection Notice overshadowed the required statutory disclosures regarding Plaintiff's right to dispute the debt within thirty days in violation of Section 1692g(b). Id. at 4-5. Defendant *1213further argues that sending successive collection notices, each of which contain thirty-day validation notices, does not mislead or deceive the "least sophisticated consumer" in violation of Section 1692e(10). Id. at 5-6. Finally, Defendant argues that the language contained in its First Collection Notice would not convey a false sense of urgency to the "least sophisticated" consumer in violation of Section 1692e(10). Id. at 6-7.

Plaintiff filed her Response on July 11, 2018. See generally (Doc. 23). In opposition, Plaintiff argues that that the language in Defendant's First Collection Notice "demanding immediate payment and threatening legal action overshadowed the [required statutory disclosures]." Id.

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Bluebook (online)
343 F. Supp. 3d 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccray-v-deitsch-wright-pa-flmd-2018.