Passafiume v. NRA Group, LLC

274 F.R.D. 424, 2010 U.S. Dist. LEXIS 143038, 2010 WL 6641072
CourtDistrict Court, E.D. New York
DecidedNovember 30, 2010
DocketNo. CV 10-796(AKT)
StatusPublished
Cited by5 cases

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

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]*427ing 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.”).

Such conduct includes “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or obtain information concerning a consumer.” 15 U.S.C. § 1692e(10); see also Russell v. [428]*428Equifax A.R.S., 74 F.3d 30, 35 (2d Cir.1996) (finding that “deeeptiveness” includes ambiguity); Leyse v. Corporate Collection Sens., Inc., No. 03 Civ. 8491, 2006 WL 2708451, at *6 (S.D.N.Y. Sept. 18, 2006) (“Leaving a message that deceptively entices a consumer to communicate with a debt collector when he is caught off guard is precisely the kind of abuse the FDCPA intended to prevent.”). Additional improper conduct includes “[t]he failure to disclose ... in [the] initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector.” 15 U.S.C. § 1692e(ll); see also Pifko, 2010 WL 2771832, at *5 (holding that “messages left on consumers’ answering machine that fail to disclose that the speaker is a debt collector seeking to collect a debt have been found to be in violation of section 1692d(ll)”); Ostrander, 2009 WL 909646, at *6 (concluding two telephone messages from an individual stating she “sought a return call from plaintiff regarding a certain account” is a “communication” within the meaning of the FDCPA); Leyse,

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Bluebook (online)
274 F.R.D. 424, 2010 U.S. Dist. LEXIS 143038, 2010 WL 6641072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passafiume-v-nra-group-llc-nyed-2010.