Ortiz v. Advanced Call Ctr. Techs., LLC

388 F. Supp. 3d 236
CourtDistrict Court, E.D. New York
DecidedJuly 29, 2019
DocketCase No. 2:17-CV-4046 (FB) (SIL)
StatusPublished
Cited by1 cases

This text of 388 F. Supp. 3d 236 (Ortiz v. Advanced Call Ctr. Techs., LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Advanced Call Ctr. Techs., LLC, 388 F. Supp. 3d 236 (E.D.N.Y. 2019).

Opinion

BLOCK, Senior District Judge:

Crystal Ortiz received a letter regarding a past-due balance on her Old Navy credit card. Alleging that the letter violated the Fair Debt Collection Practices Act ("FDCPA"), she sued the sender of the letter, Advanced Call Center Technologies, LLC ("ACCT"). ACCT now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is granted in part and denied in part.

I

In considering a motion to dismiss for failure to state a claim, "a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." See DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). It may also consider extrinsic documents that are "integral" to the complaint. Id. The letter sent to Ortiz is plainly integral to her claims; in any event, it is attached to her complaint. It reads, in pertinent part, as follows:

Dear Crystal Ortiz:
This account has been listed with our office for collection.
This notice has been sent by a collection agency. This is an attempt to collect a debt, and any information obtained will be used for that purpose.
If the Amount Currently Due is paid to Synchrony Bank [the issuer of the card] and your account is brought up to date, we will stop our collection activity.
* * *
Synchrony Bank may continue to add interest and fees as provided in your agreement.
* * *

Compl., Ex. A. The letter's heading identifies an "AMOUNT CURRENTLY DUE [of] $580.00," as well as an "ACCOUNT BALANCE [of] $7,747.00." Id.

II

The FDCPA forbids the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. It further requires certain communications from debt collectors to include "a written notice containing ... the amount of the debt." Id. § 1692g(a)(1). "Because the FDCPA is remedial in nature, its terms must be construed in liberal fashion if the underlying Congressional purpose is to be effectuated." Vincent v. The Money Store , 736 F.3d 88, 98 (2d Cir. 2013) (internal quotation marks omitted). In particular, whether a statement is deceptive "is determined from the perspective of the objective 'least sophisticated consumer.' " Easterling v. Collecto, Inc. , 692 F.3d 229, 233 (2d Cir. 2012) (quoting Clomon v. Jackson , 988 F.2d 1314, 1318 (2d Cir. 1993) ).

*240Ortiz alleges that the letter violated the FDCPA in five respects. Each of those claims is addressed in turn.

A. First Claim

Ortiz alleges that the letter did not accurately state the "amount of the debt," as required by 15 U.S.C. § 1692g(a)(1), because it did not state whether interest and fees were, in fact, accruing and because it did not explain the basis for any such interest and fees. She concedes that this claim is foreclosed by Kolbasyuk v. Capital Management Services, LP , 918 F.3d 236 (2d Cir. 2019), in which the Second Circuit held that "[n]othing in Section 1692g required [the debt collector] to inform [the debtor] of the constituent components of that debt or the precise rates by which it might later increase." Id. at 240.

B. Second Claim

Ortiz alleges that, if interest and fees were accruing, the statement that the issuer "may continue to add interest and fees" (emphasis added) was false, deceptive, or misleading within the meaning of 15 U.S.C. § 1692e because it left open the possibility that interest and fees would not accrue. She concedes that this claim is foreclosed by Avila v. Riexinger & Associates , 817 F.3d 72 (2d Cir. 2016), in which the Second Circuit held that a debt collector's failure to disclose that interest was accruing could be misleading, but also adopted the following "safe harbor":

[A] debt collector will not be subject to liability under Section 1692e for failing to disclose that the consumer's balance may increase due to interest and fees if the collection notice either accurately informs the consumer that the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date.

Id. at 77.

It is true that the formulation of the safe harbor quoted above requires the debt collector to state (if true) that the amount of the debt "will increase." Id.

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Bluebook (online)
388 F. Supp. 3d 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-advanced-call-ctr-techs-llc-nyed-2019.