Passafiume v. NRA Group, LLC

274 F.R.D. 424, 2010 U.S. Dist. LEXIS 143038, 2010 WL 6641072
District Court, E.D. New York·Decided November 30, 2010·No. No. CV 10-796(AKT)·Published·Cited by 5 cases

Opinion

ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. Preliminary Statement

Plaintiff Kenneth Passafiume brings this action, on behalf of himself and all others similarly situated, against defendant NRA Group, LLC d/b/a National Recovery Agency (“NRA”) pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Plaintiff alleges that Defendant’s scripted and deceptive telephone messages used in order to collect consumer debts violates the FDCPA. Presently before the Court is a joint motion seeking an Order: (1) certifying the proposed Class for settlement purposes; (2) preliminarily approving of the proposed Settlement Agreement; (3) direct[427] ing notice to the Class; and (4) setting dates for opt-onts, objections, and a hearing under Federal Rule of Civil Procedure 23(c)(2). See DE 9.

II. Factual Background 1

Plaintiff alleges that the Defendant placed numerous, constant and persistent telephone calls to Plaintiff and left numerous messages on Plaintiffs voicemail. Am. Compl. ¶¶ 8-9. The Defendant allegedly used an automated machine to leave the following automated message on Plaintiffs voicemail on a repeated basis:

Hi. This is Jennifer. Please return my phone call to 1800-360-4319. Again, the number is 1800 36ÍM319. When returning the call please reference master number R86832. Once again that master number is R86832.

Id. ¶ 12. Plaintiff alleges that this information comprised the entire message continuously left by Defendant on Plaintiffs voice-mail. Id. ¶ 13. The Amended Complaint asserts that this repeated message failed to meaningfully identify the Defendant and failed to include the notices required by a debt collector pursuant to 15 U.S.C. § 1692e(ll). Id. ¶¶ 10-11. Thus, Plaintiff claims that these messages were misleading in that they were attempts by Defendant to deceptively induce Plaintiff into returning the call by failing to indicate Defendant’s identity as a debt collector. Id. ¶¶ 15,18.

Based on the above conduct by Defendant, Plaintiff brought this action for violations of the FDCPA on behalf of himself and a proposed class consisting of all persons in the State of New York to whom Defendant placed a telephone call and left a message substantially similar or materially identical to those left on Plaintiffs voicemail during the one-year period immediately preceding the filing of this action. Id. ¶ 19.

III. Discussion

A. The Fair Debt Collection Practices Act

“The FDCPA was enacted to ‘eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.’ ” Bank v. Pentagroup Financial, LLC, No. 08-CV-5293, 2009 WL 1606420, at *2 (E.D.N.Y. June 9, 2009) (quoting 15 U.S.C. § 1692(e)). The FDCPA regulates the collection of consumer debts defined as debts incurred “primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir.2002) (“The FDCPA was passed to protect consumers from deceptive or harassing actions taken by debt collectors.”). When evaluating an FDCPA claim, courts apply the objective “least sophisticated consumer” standard. See Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993) (adopting the objective standard known as the “least sophisticated consumer” to ensure the FDCPA “protects all consumers, the gullible as well as the shrewd”); see also Pifko v. CCB Credit Services, Inc., No. 09-CV-3057, 2010 WL 2771832, at *3 (E.D.N.Y. July 7, 2010); Ostrander v. Accelerated Receivables, No. 07-CV-827, 2009 WL 909646, at *5 (W.D.N.Y. Mar. 31, 2009).

Section 1692e of the FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representations or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A single violation of Section 1692e is sufficient to establish civil liability under the FDCPA. See 15 U.S.C. § 1692k (establishing civil liability for “any debt collector who fails to comply with any provision of this subehapter”). The Section specifically identifies conduct by a defendant which violates the statute. See 15 U.S.C. § 1692e(l)-(16); see also Clomon, 988 F.2d at 1318 (“The sixteen subsections of § 1692e set forth a non-exhaustive list of practices that fall within this ban.”).

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Passafiume v. NRA Group, LLC, 274 F.R.D. 424, 2010 U.S. Dist. LEXIS 143038, 2010 WL 6641072 (E.D.N.Y. 2010).

274 F.R.D. 424 (Passafiume v. NRA Group, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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