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rubyruby27
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« on: October 12, 2007, 09:35:47 PM »

Motions, Pleadings and Filings


Only the Westlaw citation is currently available.


United States District Court,

D. Connecticut.

Ralph COPPOLA, Plaintiff,

v.

ARROW FINANCIAL SERVICES, LLC, Defendant.

No. Civ.3:02CV577 (PCD).



Oct. 29, 2002.



RULING ON MOTION TO COMPEL



DORSEY, J.



*1 Plaintiff moves to compel responses to certain interrogatories and requests for production. For the reasons set forth hereon, the motion is granted in part.



I. BACKGROUND



Plaintiff alleges that defendant acquired plaintiff's debt owed to Home Depot. Defendant undertook to collect the debt from plaintiff, and in doing so violated the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692 et seq., the Connecticut Creditor Collection Practices Act, Conn. Gen.Stat. § 36a-645, the Connecticut Consumer Collection Agency Act, Conn. Gen.Stat. § 36a-800 and the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. § 42- 110a. Defendant objected and refused to respond to eight interrogatories and seven requests for production, which are the subject of the present motion to compel. The details of each are set forth in the discussion.



II. DISCUSSION



Plaintiff moves to compel responses to the above requests. Defendant responds that the objections are valid and should be sustained.



The scope of permissible discovery is broad. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). However, "ome threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case." Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.1992). Furthermore, discovery may not be had where the discovery sought is "unreasonably cumulative or duplicative," overly "burdensome ... [or] expensive" or "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2). An order compelling discovery may be tailored to the circumstances of the case. See Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir.1996).

Interrogatory 2: Identify Ann Brown Objection: irrelevant



Defendant's objection is overruled. The collection letter signed by Ann Brown identifies her as an account executive. Defendant argues that this information suffices and it need provide no greater detail. As an identified representative of defendant and signatory of a collection letter, Ms. Brown may have personal knowledge of defendant's collection practices or have knowledge that may lead to discoverable material. Defendant must provide her "full name, present or last known address, and ... [her] present or last known place of employment." D. CONN. L. CIV. R 39©)(3).

Interrogatory 3: On a separate page, please set forth a plain English transcript of the "contact history," media, or credit records defendant is asked to produce herewith, including meaning of code numbers and abbreviations from top to bottom.

*2 Objection: beyond the scope of discovery, vague, broad, burdensome and irrelevant.



Defendant's objection to Interrogatory 3 as vague is sustained. Contrary to plaintiff's argument, this discovery request is substantially different from that in Yancey v. Hooten, 180 F.R.D. 203, 213 (D.Conn.1998), in which the court ordered the production of collection records and a key to codes used therein. In the present case, the phrase "contact history" is not defined in the motion papers and appears to have a meaning unique to the request as implied by the use of quotation marks. Furthermore, the phrase "English transcript" implies more is sought from defendant than a simple explanation of codes used in collection records and defendant need not guess at the specific information and applicable level of detail for the information sought.

Interrogatory 4: Identify each consumer reporting agency (credit bureau) to which defendant reported plaintiff's debt and the dates of each such report. Objection: irrelevant



Defendant's objection is overruled. In his complaint, plaintiff alleges that defendant violated 15 U.S.C. § 1692e, see Complaint ¶ 11, which prohibits the "use [of] any false, deceptive, or misleading representation or means in connection with the collection of any debt." Plaintiff need not refer to the specific subsection as defendant has notice of the claim. The information sought is therefore relevant to a violation of 15 U.S.C. § 1692e(Cool.

Interrogatory 5: Provide an itemized calculation of the amount claimed due in your demand letters to plaintiff (interest, principal, collection charge, other components if any). Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private.



Unlike Interrogatory 3, Interrogatory 5 sufficiently defines the term "itemized calculation" in the parenthetical. Fees or costs added to an underlying debt on which collection is sought are relevant to an FDCPA claim. See 15 U.S.C. § 1692f(1). As to defendant's objection that its method of calculating the debt owed is confidential, plaintiff requests an itemized breakdown of the debt sought, not the methods through which those numbers are calculated. Defendant, as the party resisting discovery, has the burden of establishing that this commercial information is privileged and must therefore offer more than a conclusory statement that the information is confidential. See DDS, Inc. v. Lucas Aerospace Power Transmission Corp., 182 F.R.D. 1, 4 (N.D.N.Y.1998). It is in no way apparent how an itemization of the component figures added onto the principal debt could be classified as a trade secret. Having failed to provide any basis in law supporting its position, defendant's objection is overruled.

Interrogatory 6: Set forth the street address of the location at which phone number 800-279-0224 is answered. Objection: irrelevant



Defendant's objection is overruled. Plaintiff has alleged that defendant violated 15 U.S.C. § § 1692e, 1692f. Defendant argues that there is no allegation that it was unlicensed. Plaintiff's invocation of these sections suffices to put defendant on notice of the claim and the claims arising under those sections pertaining to unlicensed debt collection. See Gaetano v. Payco of Wisconsin, Inc ., 774 F.Supp. 1404, 1414 (D.Conn.1990).

*3 Interrogatory 7: Identify the parties to the purchase and sale agreement whereby defendant acquired plaintiff's former Home Depot account. If a broker was involved, identify that entity. Objection: irrelevant, confidential, proprietary and private



In its answer, defendant denied plaintiff's allegation that it acquired plaintiff's Home Depot debt. As such, plaintiff is entitled to pursue discovery on the issue. Moreover, whether defendant is legally entitled to collect its debt is directly relevant to a claim under 15 U.S.C. § § 1692e, 1692f. Defendant's claim of confidentiality, without further explanation or citation to legal authority, is not a valid basis for refusing a discovery request. See DDS, Inc. v. Lucas Aerospace Power Transmission Corp., 182 F .R.D. 1, 4 (N.D.N.Y.1998). The objection is overruled.

Interrogatory 8: Identify all assignees of plaintiffs' former Home Depot account in and since 2001. If any assignee is a trust, identify each trustee thereof. Objection: "assignee" is not defined, overly vague



Defendant objects on the ground that the term "assignee" is ambiguous. According the term its ordinary meaning in the context in which it is used, such objection is without merit. The objection is overruled.

Interrogatory 9: Describe in full each of Arrow's "several programs that will help you to absolve your obligation. (Letter 2015)" Objection: irrelevant



Defendant's objection is overruled. "[T]he use of any false, deceptive, or misleading representation in a collection letter violates § 1692e." Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir.1993). The existence of such programs goes to the truth of the statement in the collection letter.

Request for Production 2: All manuals, procedures, and protocols used by defendant regarding communication with Home Depot regarding purchased debts. Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private



Defendant's objection is overruled. See ruling on objection to Interrogatory 7.

Request for Production 3: All documents concerning indemnity agreements relating to Home Depot regarding purchased debts. Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private



Defendant's objection is overruled. See ruling on objection to Interrogatory 7.

Request for Production 6: All agreements between defendant and Home Depot in effect during 2001 as to the purchase or collection of debts. Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private



Defendant's objection is overruled. See ruling on objection to Interrogatory 7.

Request for Production 7: All other documents showing authorization of defendant to collect debts for Home Depot during 2001. Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private



Defendant's objection is overruled. See ruling on objection to Interrogatory 7.

*4 Request for Production 10: All agreements of defendant with any entity concerning servicing or collection of the debt of plaintiff. Objection: overly broad, burdensome, irrelevant, confidential, proprietary and private, attorney client privilege, work product



Defendant's objection is overruled. See ruling on objection to Interrogatory 7.

Request for Production 13: Copies of all documents showing Arrow's "several programs that will help you to absolve your obligation." Objection: irrelevant



Defendant's objection is overruled. See ruling on objection to Interrogatory 9.



III. CONCLUSION



Plaintiff's motion to compel (Doc. 15) is granted in part. Defendant is hereby ordered to respond to Interrogatories 2, 4, 5, 6, 7, 8 and 9 and Production Requests 2, 3, 6, 7, 10, 11, and 13, compliance on or before November 18, 2002.



SO ORDERED.



Not Reported in F.Supp.2d, 2002 WL 32173704 (D.Conn.)






Motions, Pleadings and Filings



• 3:02CV00577 (Docket) (Apr. 01, 2002)



END OF DOCUMENT
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rubyruby27
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« Reply #1 on: October 12, 2007, 09:37:45 PM »

774 F.Supp. 1404

Mary J. GAETANO, Plaintiff,
v.
PAYCO OF WISCONSIN, INC., Defendant.

Civ. No. N-89-220 (TFGD).

United States District Court, D. Connecticut.

June 20, 1990.

Joanne S. Faulkner, New Haven, Conn., for plaintiff.

Lewis Lerman, Susan Chambers, Ann H. Rubin, Carmody & Torrance, New Haven, Conn., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DALY, District Judge.

Plaintiff, Mary Gaetano, alleges that the defendant, Payco of Wisconsin, Inc. ("Payco"),

violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o, in its efforts to collect a credit card debt of $6,017.67 on behalf of Chase Manhattan Bank, N.A. ("Chase"). Both the plaintiff and the defendant seek summary judgment on plaintiff's claims.

Summary Judgment Standards

Viewing the record in the light most favorable to the non-moving party, summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the evidence offered raises no genuine disputes of material fact and the moving party is entitled to summary judgment as a matter of law. Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 139 (2d Cir.1989). To defeat such a motion, the non-moving party must offer concrete evidence tending to show that its claim is more than fanciful, see id.; Fed. R.Civ.P. 56(e); or, alternatively, must show that the movant is not entitled to summary judgment as a matter of law.

This burden remains the same even when cross-motions for summary judgment have been filed. Knowles v. Postmaster General, 656 F.Supp. 593, 597 (D.Conn. 1987). The Court must consider each party's motion on its own merits, drawing all reasonable inferences from the record against the party's whose motion is under review. Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981). Since the facts of this case are straight-forward, the Court will review them in the context of its evaluation of the legal merits of the pending motions.

Discussion

A) The FDCPA

The FDCPA prohibits, inter alia, a debt collector from employing "false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. § 1692e. To determine whether a collection demand is misleading or deceptive, courts employ the "least sophisticated consumer" standard — inquiring whether the least sophisticated debtor would likely be misled or deceived by the collection notice at issue. Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988); see also Exposition Press, Inc. v. F.T.C., 295 F.2d 869, 873 (2d Cir.1961) ("look not to the most sophisticated [consumer,] but to the least"). Since the FDCPA is a strict liability statute, the plaintiff need only show one violation of its provisions to be entitled to summary judgment. Colmon v. Payco-General American Credits, Inc., 774 F.Supp. 691, 693 (D.Conn.1990); Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 175-76 (W.D.N.Y.1988).

B) Plaintiff's Summary Judgment Motion

1) False Statements

Plaintiff's first claim is that defendant falsely stated in its second collection notice that "[a]n investigation has disclosed that you are employed...." Plf.Exh. B. By so stating, the plaintiff argues, defendant violated section 1692e(10)'s prohibition against making false representations in order to collect a debt or to obtain information about the consumer. Plaintiff contends that defendant's notice was "intended to smoke her out by having her call, to confirm or deny, or to plead with defendant not to contact her employer." Plf.Mem. at 5 (2/27/90).

The undisputed record indicates that, pursuant to the terms of the collection agreement, on or about November 3, 1988 Chase provided the defendant with information indicating that plaintiff "was employed by Gutkin Caterers, Whaley [sic] Avenue, New Haven, Connecticut and that the telephone number of Gutkin Caterers was 203/562-6185." Roznik Aff. at ¶ 5. Also undisputed is that defendant tried calling that number on November 15, 1988 only to find that it was not in service at that time. Id. at ¶ 7. On November 16, 1988, the defendant then sent to plaintiff its second collection notice including therein the sentence quoted above.

Plaintiff contends that the statement was untrue because no investigation was undertaken and because defendant's information was "merely that [plaintiff] had been employed." Plf.Mem. at 1 (3/28/90). The

Court disagrees. The defendant did investigate plaintiff's employment status. That defendant gleaned its information from Chase pursuant to standard procedures established in the collection agreement does not detract from this fact. Additionally, defendant investigated by attempting to verify the employment by telephoning the number given it for Gutkin Caterers. The defendant did not violate the FDCPA by failing to state that Gutkin Caterer's phone was not in service at the time the defendant attempted to reach the employer. Significantly, nor did defendant state that it had verified plaintiff's place of employment. Simply because the alleged employer's phone was not in service at the time of the call, did not mean that Gutkin Caterers no longer employed the plaintiff. In the absence of evidence indicating that the defendant knew that plaintiff no longer worked for that caterer or that defendant knew that the caterer never existed or had gone out of business, the Court finds no violation and this claim is dismissed.

Apparently1, plaintiff also claims that the defendant violated the FDCPA by threatening to sue when it had no intention or ability to sue and by falsely stating that it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS" when it did not intend to do so.2 Plf.Exh. A. She also asserts that the following statements threaten litigation which the defendant did not intend to pursue: 1) "WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS ... AND ANY INFORMATION WE OBTAIN WILL BE USED AS A BASIS TO ENFORCE COLLECTION OF THE DEBT"; and 2) the "ACCOUNT HAS BEEN GIVEN TO US FOR IMMEDIATE ACTION." Plf.Exh. A.

The FDCPA prohibits debt collectors from threatening action that cannot legally be taken as well as threatening action that they do not intend to undertake. 15 U.S.C. § 1692e(5). Also, forbidden is the use of any false representation or deceptive means to collect or to attempt to collect a debt. 15 U.S.C. § 1692e(10). Plaintiff argues that the defendant violated both of these provisions.

Plaintiff's argument that the defendant violated the first of these provisions misses the mark in two respects. First, plaintiff has offered no evidence, other than counsel's bald assertions, regarding defendant's intent as to any future actions. Second, and more importantly, the Court does not construe the quoted language as threatening litigation. Significantly, the quoted passages contain no reference, either direct or implicit, to suit, lawsuit, legal action, or litigation. Though plaintiff relies on Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir.1989), that case is distinguishable from the one at bar. In Pipiles, the second notice sent to the debtor stated:

Notice is Hereby Given That this Item Has Already Been Referred for Collection Action; We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure Payment In Full, [and] Pay this Amount Now If Action Is To Be Stopped.

Id. at 25. Not only is the substance of these statements in many respects more harsh than those made to plaintiff here (and though the debt collector there conceded that the only further action it contemplated was telephone contact), Pipiles differs materially from the case at bar because the consumer had already received an initial collection notice from the debt collector and the second notice given clearly threatened more drastic consequences for non-payment (i.e., legal action). See id. ("clear import of the language, taken as a

whole, is that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment"). For these reasons, the Court dismisses plaintiff's claims that the defendant threatened, without intent, to sue and thereby also falsely represented its intentions as a means of debt collection.

Granting summary judgment on plaintiff's other claim, that defendant falsely stated it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT", is inappropriate. To support this claim, plaintiff argues that the defendant had over two dozen collection letters available, which it did not intend to use and which establishes that defendant made false representations in order to collect a debt. Other than counsel's bald assertion, plaintiff has not offered any evidence supporting the number of collection letters defendant had available for use. Nor has she offered any evidence of defendant's intent with respect to the statement at issue. In similar fashion, defense counsel also makes bald assertions regarding defendant's intent and the number of collections letters. Given the failure of the parties to offer evidence, see Fed.R.Civ.P. 56(c), supporting counsels' arguments, this claim must await trial and summary judgment is denied.

2) Statutorily Required Notices

Plaintiff also contends that the defendant failed to comply with several FDCPA notice provisions. The first of these requires that the debt collector "disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11).

On November 9, 1988 the defendant sent a demand for payment to the plaintiff, indicating in the second paragraph on the reverse side of the demand that:

WE ARE A PROFESSIONAL COLLECTION AGENCY ATTEMPTING TO COLLECT A DEBT. WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS WHICH HAVE BEEN REFERRED TO US AND ANY INFORMATION WE OBTAIN WILL BE USED AS A BASIS TO ENFORCE COLLECTION OF THE DEBT.

Plf.Exh. A.

Plaintiff argues that the least sophisticated consumer would not be able to divine the required disclosure in the paragraph because of the use of "non-required verbiage" and "extraneous intimidating language." Once again, the Court disagrees and holds that the disclosure was "clearly" conveyed within the contemplation of the FDCPA.

Plaintiff concedes that the statement made contains the required notice. Therefore, this case is distinguishable from those finding liability for the failure to do so. See, e.g., Traverso v. Sharinn, N-88-446(WWE), 15 CLT No. 39 (D.Conn. Sept. 15, 1989). The section 1692e(11) notice is designed to give a debtor notice that she is dealing with a collection agency, attempting to collect a debt, and which will use any information it obtains for that purpose. Defendant's notice comports with that purpose and the defendant's decision not to use the statutory language does not obfuscate the basic message to be conveyed.3 See Emanuel v. American Credit Exchange, 870 F.2d 805, 808 (2d Cir.1989) ("There is no requirement that the letter quote verbatim the language of the statute."). As a matter of law, plaintiff is not entitled to summary judgment on this claim. Rather, the entry of summary judgment in defendant's favor is warranted. Therefore, this claim is dismissed.

Plaintiff also argues that the defendant failed to meet its statutory obligations by obscuring what is commonly referred to as the "debt validation notice." More specifically, plaintiff contends that the defendant failed to comply with that part of 15

U.S.C. § 1692g(a)4, which provides that the debt collector must send the consumer written notice advising that debt will be assumed to be valid unless the consumer notifies the debt collector, within thirty days of the receipt of such notice, that the validity of the debt, or any portion thereof, is disputed.

Across the top of the front page of defendant's first collection notice in large, red, boldface type were the words "DEMAND FOR PAYMENT". Plf.Exh. A. Slightly more than one-third of the way down the front page, also in red, (slightly smaller) boldface type are the words "THIS IS A DEMAND FOR IMMEDIATE FULL PAYMENT OF YOUR DEBT". In the middle of the page is the following statement: "YOUR SERIOUSLY PAST DUE ACCOUNT HAS BEEN GIVEN TO US FOR IMMEDIATE ACTION. YOU HAVE HAD AMPLE TIME TO PAY YOUR DEBT, BUT YOU HAVE NOT. IF THERE IS A VALID REASON, PHONE US AT (414) 784-6565 TODAY." Id. Immediately below that statement in black, boldface type are the words, "IF NOT, PAY US — NOW". Id. In roughly the bottom third of the front page, in purported 126 point type, is the word "NOW". Id. Finally, in the bottom inch of the page, in white letters set off by a dark red background is the statement: "NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION". Id.

On the reverse side of this document in the second paragraph (below the one containing the § 1692e(11) notice) in gray type against a white background is the statement:

THIS DEBT WILL BE ASSUMED TO BE VALID BY THE COLLECTOR UNLESS THE CONSUMER, WITHIN THIRTY DAYS AFTER RECEIPT OF THIS NOTICE, DISPUTES THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF.

Id. Eight days after defendant sent its first collection notice to plaintiff, it sent her a second notice, omitting any reference to the validation notice, and demanding that plaintiff "make payment in full today or phone (414) 784-6565." Plf.Exh. B.

The debt validation notice is designed to fulfill congressional intent to "eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S.Rep. No. 382, 95th Cong.2d Sess. 4, reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1699. Though the statute does not require that the debt validation language be of a particular format, type size, location, or conspicuousness, Blackwell v. Professional Business Services, 526 F.Supp. 535, 538 (N.D.Ga.1981), courts have held that a debtor cannot satisfy its requirements simply by timely stating the requisite language in its collection notice.

The statute is not satisfied merely by inclusion of the required debt validation notice; the notice Congress required must be conveyed effectively to the debtor. It must be large enough to be easily read and sufficiently prominent to be noticed — even by the least sophisticated debtor. [Baker v. G.C. Services Corp., 677 F.2d 775, 778 (9th Cir.1982)]. Furthermore, to be effective, the notice must not be overshadowed or contradicted by

other messages or notices appearing in the initial communication from the collection agency. E.g., Thomas v. National Business Assistants, Inc., No. N-82-469 (D.Conn.1984) ("inconspicuous and grossly overshadowed" notice did "not properly notify recipients of their validation of debt rights"); Ost v. Collection Bureau, Inc., 493 F.Supp. 701, 703 (D.N.D.1980) (communication must not be designed to "evade the spirit of the notice statute, and mislead the debtor into disregarding the notice").

Swanson, 869 F.2d at 1225.

Furthermore, "f the debt collector wishes to place the validation of debt language on the back of its `initial communication,' then some clear reference to that language must appear on the face of that document." Ost, 493 F.Supp. at 703; Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 177 (W.D.N.Y.1988) (relying in part on Gambardella v. G. Fox & Co., 716 F.2d 104, 111 (2d Cir.1983)).

Despite plaintiff's contrary contention, the defendant's initial communication clearly indicates to the reader that the reverse side of the first collection notice contains important information warranting attention. Nor is the Court persuaded that the other language on the front of the collection notice or the first paragraph on the reverse side, when examined through the eyes of the least sophisticated consumer, obscured either the notice to see the reverse side of the document or the debt validation notice itself. See Colmon, at 694-95 (involving a collection notice nearly identical to the one at bar).

The Court is troubled, however, by: 1) the defendant's statement in the initial collection notice that "IF THERE IS A VALID REASON [YOU HAVE NOT PAID], PHONE US AT (414) 784-6565 TODAY"; and 2) the fact that eight days after the initial communication the defendant sent another collection notice to plaintiff, lacking any debt validation notice or reference to the notice initially given, and stating, inter alia, "MAKE PAYMENT IN FULL TODAY OR PHONE (414) 784-6565." Plf. Exh. B. The Colmon court was presented with almost the same dilemma and rejected the contention that these facts contradict and obscure the debt validation notice. It so held focusing on both the fact that no harm was threatened if payment was not made prior to the expiration of the thirty-day validation period, see Swanson, 869 F.2d at 1225-26, and the lack of any statutory requirement that collection efforts cease during the thirty-day validation period. Colmon, at 695-96. Finally, it drew a distinction between "justification for a delay in payment and a dispute as to the validity of the debt", id. at 695, noting that the language in both notices relating to phone calls merely "stated plaintiff's option, if delay in payment is justified, to arrange payment terms." Id.

Colmon is distinguishable from this case. First, and most importantly, because the second notice sent to the debtor stated, inter alia, "WITHIN 72 HOURS, PAY THE BALANCE IN FULL OR CALL US AT (201) 981-9600 TO ARRANGE TERMS." Id. at 695. And second, because the time period between the mailing of the first (October 13, 1988) and second (November 3, 1988) notices was three weeks, as opposed to eight days in this case. The first distinction is of significance because the second notice in this case does not make any reference to calling to "arrange terms". The second distinction is of importance because the time period between the giving of the two notices is greater, thereby lessening the possibility that the second notice would deter a consumer considering disputing the validity of a debt from doing so or doing so by improper telephonic means.

To the extent that Colmon is not distinguishable, on the facts of this case this Court rejects its analysis for the following reasons. First, the Court must remain cognizant that the defendant's compliance with the FDCPA must be viewed from the perspective of the least sophisticated consumer. When viewed from such a perspective, the Court finds confusing, notwithstanding the clear reference to the reverse side of the document and the appropriate debt validation language itself, defendant's

statement to call "today" if there is valid reason for non-payment.5 Such a statement fundamentally contradicts and detracts from the requirement that, to dispute the validity of the debt or any portion thereof, the consumer must do so in writing. See 15 U.S.C. § 1692g(b) (discussing the writing requirement). A consumer calling the defendant would not be exercising her validation rights and would not be entitled to the statutory cessation of debt collection activities (with respect to that portion of the debt that is disputed). See id. (requiring that debt collection activities cease from the time the debt collector receives written notification that the consumer disputes the debt until the time that the debt collector obtains verification of the debt or a copy of a judgment or the name and address of the original creditor and mails the same to the consumer).

Additionally, in this case, the second notice does nothing but add to that confusion. Just more than one week after mailing the initial collection notice to the plaintiff, the defendant sent a collection notice stating that plaintiff should pay in full "today" or phone, that contained no restatement of the prior debt validation language or any reference to the important information on the back of the first collection notice. Again, the reference to telephoning serves to negate the message that plaintiff must exercise her rights to dispute the debt in writing. Moreover, that failure is further aggravated by the absence of any reference to the debt validation notice. Though Congress mandated neither that debt collection efforts cease during the thirty-day validation period nor that every collection notice sent to the plaintiff repeat the debt validation notice, see 15 U.S.C. § 1692g(a) (providing only that such written notice must be given in the collector's initial communication with the debtor or within five days thereafter), this does not excuse the failure of a debt collector to convey effectively such notice to a consumer.6 Cf. Swanson, 869 F.2d at 1225-26; Butler v. Int'l Collection Serv., Inc., Civ. No. N-88-302 (D.Conn. June 6, 1989); Riveria, 682 F.Supp. at 176-77; Ost, 493 F.Supp. at 702-704. The Court holds that because the least sophisticated consumer would be confused by the defendant's attempt to comply with § 1692g, the defendant failed to effectively convey the debt validation notice to the plaintiff, and the plaintiff is entitled to summary judgment on this claim.

3) Harassing or Abusive Conduct

Plaintiff also seeks summary judgment on her claim that by means of its second collection notice the defendant "engaged in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Specifically, plaintiff asserts that the second notice's statement, giving her "THIS OPPORTUNITY TO SETTLE THIS MATTER IN A FRIENDLY MANNER", coming on the heels of the alleged threats contained in defendant's first notice, oppressively implied that the defendant would resort to unfriendly methods including violence, etc. if friendly methods did not succeed. Plf. Exh. B.

On the basis of the undisputed factual record, the Court holds that plaintiff is not entitled, as a matter of law, to summary judgment on this claim. Rather, the defendant is entitled to such judgment and this claim is, accordingly, dismissed. The Court does not deem the second notice, when read in its entirety, to be the type of oppressive or abusive conduct proscribed by § 1692d. Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or.1981) (finding abusive letter sent to consumer implying that she

removed her head when receiving letters from debt collector, that she ignored her mail and bills, and that she lacked common sense to handle properly her financial matters).

4) Threats of Unlawful Conduct

Plaintiff also contends that the defendant threatened unlawful conduct in violation of 1692e(5) by stating in its second collection notice that "All information obtained in our investigation WILL be used to collect this debt." Plf.Exh. B. With the exception of the words "in our investigation", the quoted sentence tracks the previously discussed statutory requirement of 15 U.S.C. § 1692e(11). Plaintiff also contends that the two references to the term "investigation" in the second collection notice threaten unlawful conduct specifically prohibited by § 1692c(b), which forbids debt collectors, except as provided in § 1692b with respect to location information, from communicating with third parties concerning the collection of a debt without the consumer's consent or a court's permission.

For the reasons set forth by Judge Dorsey in Colmon, this Court disagrees and dismisses this claim. As noted in Colmon, Swanson is distinguishable, the statement at issue "is simply a reiteration of the § 1692e(11) notice in the follow-up collection letter", and the words "in our investigation" do not threaten improper third-party contact...." Colmon, at 696.

5) Lack of Authority to Collect

Plaintiff's next contention is that the defendant's alleged lack of authority to collect on the account ran afoul of 15 U.S.C. § 1692e(9)'s prohibition against sending any written communication creating a false impression as to its authorization.7

The collection agreement between Chase and the defendant's parent corporation, Payco American Corporation, provides, in pertinent part, that "[the parent] shall not transfer collection activities on an Account from one of its offices to another without [Chase's] prior written approval." 1988 Agreement at ¶ 3. Plaintiff has also offered evidence of a May 18, 1988 letter from Chase to the parent corporation which specifically rejects the parent's proposal for contractual permission to transfer a collection account "from one Payco office to another" without Chases's prior approval. Without explicitly conceding or denying the effect of these statements, the defendant has submitted the affidavit from Chase's Second Vice President indicating that "[Chase] understands that [defendant] is a wholly-owned subsidiary of Payco American Corporation and pursuant to the agreement between Payco American Corporation and [defendant], [the latter] was authorized to collect debts on behalf of [Chase], [including the debt at issue here]." DeGeorge Aff. at ¶ 5.

Whether this statement creates a genuine dispute of material fact need not be resolved, because the plaintiff is not entitled to summary judgment on this claim as a matter of law. As stated under very similar circumstances in Colmon:

[P]laintiff offers no case law in support of her theory that lack of express authority in the contract would be in violation of § 1692e(9). That the collection letters and other communications were undertaken by a wholly-owned subsidiary of the entity which contracted with the creditor rather than the parent company is an overly technical argument which would not create a `false impression' as to authorization in the mind of the least sophisticated consumer. Nor would it further the purposes of the FDCPA [to find such a violation]. The collection letters all clearly identified defendant as a collection agency. This is not the case where a debt collector attempts

to clothe collection efforts with governmental or other official authority.

Colmon, at 698-99. Since the defendant is entitled to judgment as a matter of law, this claim is dismissed.

6) Licensing

Plaintiff's final claim (or, more appropriately, set of claims) revolves around the allegation that the defendant engaged in collection activity in the State of Connecticut without a license. Though once again plaintiff offers no evidence in support of this allegation, the Court deems it admitted because the defendant implicitly concedes its truth. Connecticut law prohibits collection agencies, like the defendant, from engaging in debt collection activities within the state unless they obtain a license from the state banking commissioner. Conn.Gen.Stat. § 42-127a(a), § 42-131(o). As noted in Wagner v. American National Educ. Corp., Civ. No. N-81-541 (PCD) (D.Conn. Dec. 30, 1983), however, no private right of action exists to enforce the Connecticut Consumer Collection Agency Act. Rather, enforcement of its provisions is left in the hands of the state banking commissioner or the state's attorney. Wagner, slip op. at 7.

Plaintiff concedes as much, but argues that the defendant's noncompliance with state law violates the FDCPA. More precisely, she asserts that defendant's unlicensed collection activity violated the FDCPA's provisions against: 1) threatening to take action that cannot legally be taken, 15 U.S.C. § 1692e(5); 2) misrepresenting one's status as an authorized collection agency, 15 U.S.C. § 1692e(9); 3) engaging in the unfair practice of acting as a collection agency in violation of public policy, 15 U.S.C. § 1692f; 4) making the false representation that the debt collector is vouched for or affiliated with a state, 15 U.S.C. § 1692e(1); 5) making false representation concerning the legal status of a debt or any service or compensation that may be lawfully received in collection thereof by the debt collector, 15 U.S.C. § 1692e(2); 6) using false representations or deceptive means to attempt to collect a debt, 15 U.S.C. § 1692e(10); 7) using unfair means to collect a debt, by attempting to collect an amount not permitted by law, 15 U.S.C. § 1692f(1); and Cool making false representations in connection with the collection of a debt, 15 U.S.C. § 1692e.

The only reference to licensing in the defendant's collection notices is the statement in the first notice sent to the plaintiff that "THIS COLLECTION AGENCY IS LICENSED BY THE OFFICE OF THE COMMISSIONER OF BANKING, ... MADISON, WI[SCONSIN]...." Plf.Exh. A. Plaintiff's second notice omits that sentence but does indicate, like the first notice, that the defendant is a collection agency.

Plaintiff argues that the defendant, by demanding payment on two occasions on the outstanding debt and stating that it would use all means to enforce collection, unlawfully threatened action that legally could not be taken in light of its failure to obtain the proper licensure from Connecticut state authorities. To buttress her argument that whether an act can legally be taken is to be determined by applicable state law, plaintiff points to non-authoritative commentary issued by the FTC stating, by way of example:

If state law forbids a debt collector from suing in his own name [or from doing so without first obtaining a formal assignment and that has not been done], the debt collector may not represent that he will sue in that state.

53 Fed.Reg. 50106, col. 2 (1988); West v. Costen, 558 F.Supp. 564, 581-82 (W.D.Va.1983) (applying state law to determine whether a debt collector has violated § 1692f(1)'s prohibition against the collection of any amount not "permitted by law"). Here, state law forbids a debt collector from acting as a collection agency without first being licensed by the proper state authorities. Hence, plaintiff argues that in demanding payment and stating that it intended to use all means at its disposal to collect and to enforce the debt (in other words, threatening to collect the debt), the defendant violated the FDCPA.

Defendant fails to respond to this argument or offer any authority contradicting

that offered by the plaintiff. Instead, it incorrectly argues that plaintiff is attempting to evade Wagner's scope in order to sue under the Connecticut Consumer Agency Act. This argument is not persuasive. Accordingly, the Court finds that the defendant violated § 1692e(5) of the FDCPA by threatening to take action that legally could not be taken.8

Plaintiff's second "licensing" claim is that the defendant "falsely represented its authorization to send collection communications" and in doing so violated the FDCPA's prohibition against the use of written communications falsely represented to be authorized or approved by state officials. See 15 U.S.C. § 1692e(9). There is no merit to this claim because defendant's collection notices contain no reference, either explicit or implicit, regarding authorization from Connecticut authorities. Therefore, no false representation concerning such authorization has been established. This claim is dismissed because the defendant is entitled to summary judgment as a matter of law.

The next licensing claim raised by plaintiff is defendant's alleged false representation that it was vouched for or affiliated with the state of Connecticut. See 15 U.S.C. § 1692e(1). Plaintiff's contention here is that defendant falsely implied that it is licensed to act as a collection agency in Connecticut because that is required by the law to engage in consumer collection in this State. The Court disagrees because it does not follow from noncompliance with the licensure requirement that defendant made a false representation. The defendant made no representation that it was licensed in Connecticut. In fact, it stated only that it was licensed in Wisconsin. In the absence of a false representation, this claim must fail.9 The same is true for the claim that the defendant falsely represented its status as a licensed collection agency to attempt to collect plaintiff's debt. Accordingly, both claims are dismissed.

Plaintiff also argues that §§ 1692e, in general, and 1692e(10), in particular, were violated by defendant's deceptive attempt to engage in collection activity in direct contravention of state law. The defendant has made no effort to address this claim. In the absence of any such opposition other than that previously noted, the plaintiff is entitled to summary judgment as a matter of law on this claim because the Court finds deceptive the defendant's attempt to collect a debt when prohibited from doing so by Connecticut law.

Finally, plaintiff claims that defendant violated § 1692f(1)'s prohibition against the collection of debt amounts not expressly authorized by the agreement creating the debt or otherwise permitted by law. Congress plainly stated that § 1692f is violated by:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

15 U.S.C. § 1692f(1). Here, plaintiff misapplies this portion of the FDCPA by reducing this statutory prohibition to the statement that the defendant may not collect any amount unless permitted by law. The focus of the statutory provision, however, is on the amount of the debt to be collected, rather than the collector's authorization to

collect any debt, whatever its amount. The case law supports this interpretation. See, e.g., West, 558 F.Supp. at 581-82 (interpreting § 1692f(1)). For this reason, this claim fails as a matter of law and is dismissed.

C) Defendant's Summary Judgment Motion

The defendant also cross-moved for summary judgment. Since, however, the Court has already addressed all the claims upon which it seeks summary judgment, the Court will not discuss those claims again now.

Conclusion

In accordance with this ruling, the plaintiff is granted summary judgment on her validation notice claim, and on those licensing claims alleging a violation of § 1692e(5), § 1692f, § 1692e, and § 1692e(10). Plaintiff's is not entitled to summary judgment as a matter of law on her false statement (re: employment investigation and use of the term "professional") claim, her § 1692e(5) threat to sue (intent) claim, her § 1692e(11) claim, her § 1692d claim, her § 1692e(5) threat to take unlawful conduct (re: "in our investigation") claim, her lack of authority claim, and on her licensing claims asserting violations of § 1692e(9), § 1692e(1), § 1692e(2), and § 1692f(1). Those claims are dismissed. Finally, plaintiff's motion for summary judgment on her § 1692e(10) (all approved means) claim is denied because and genuine and material factual disputes. In accordance with the above, defendant's motion is also granted in part and denied in part.

Both parties are hereby directed to file simultaneously briefs on the issue of damages for those violations found thus far by July 2, 1990. Each side will then be entitled to file one, and only one, reply brief by July 13, 1990. The Clerk is directed to issue the Court's standard Pretrial Order forthwith.

SO ORDERED.

---------------

Notes:

1. For the record, the Court notes that plaintiff's presentation of the claims upon which she seeks summary judgment is often difficult to decipher.

2. Plaintiff also contends that defendant's statement that it is a "professional" collection agency on the back of the first collection notice is both false and intimidating. For the reasons stated in Colmon, at 693, this Court disagrees. This Court finds that the reference to "professional" is not intimidating or false and merely notifies the debtor that the defendant is in the business of debt collection.

3. Whether this portion of the letter violated section 1692e(5)'s prohibition concerning a "threat to take any action that cannot legally be taken" will be considered below.

4. In its entirety, 15 U.S.C. § 1692g(a) provides:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing — (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

5. While it might be argued that the "valid reason" language in the first notice, refers to a valid reason for failure to pay timely one's obligation, as apparently assumed by the Colmon court, in view of the remedial nature of the statute this Court finds no basis for finding that the least sophisticated consumer would make such an assumption.

6. In this instance, for example, if the defendant had stated in its first notice to call if plaintiff had a reason (apart from any underlying reason as to the validity of the debt) for failing to pay her debt in timely fashion, and placed in its second notice some reference to the important information contained on the back of its first collection notice, liability might not attach.

7. Specifically, the statute provides that the FDCPA is violated by: "The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval." 15 U.S.C. § 1692e(9).

8. For the similar reasons, the Court holds that the defendant's unlicensed actions as a collection agency in the state of Connecticut constituted an "unfair or unconscionable" method of debt collection in violation of § 1692f. By failing to seek the proper license from the state banking commissioner, for example, the defendant deprived the plaintiff of her right as a consumer debtor residing within the state to have the defendant's qualifications as a collection agency reviewed by state authorities. See Conn.Gen.Stat. § 42-127a(b). Accordingly, the plaintiff is also entitled to summary judgment on this claim.

9. For similar reasons, plaintiff's § 1692e(2) claim is rejected. There is no evidence that defendant falsely represented either the legal status of the debt or the amount of services rendered or compensation it might be entitled to for collection of the debt. That defendant engaged in unlicensed collection activity is not, on the basis of the facts of this case, relevant to proving this claim.
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« Reply #2 on: October 12, 2007, 09:43:17 PM »

ALICIA YANCEY, Plaintiff, v. PAUL J. HOOTEN, and THOMAS RATHGEB, Defendants.

CIVIL NO. 3:97CV1400 (DJS)(TPS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

180 F.R.D. 203; 1998 U.S. Dist. LEXIS 11003


May 5, 1998, Decided
May 5, 1998, Filed

DISPOSITION: [**1] Plaintiff's motion to compel (doc. # 21) GRANTED.

COUNSEL: For ALICIA YANCEY, plaintiff: Joanne Faulkner, Law Offices of Joanne Faulkner, New Haven, CT.

PAUL J. HOOTEN, defendant, Pro se, Mount Sinai, NY.

THOMAS RATHGEB, defendant, Pro se, Mount Sinai, NY.

JUDGES: Thomas P. Smith, United States Magistrate Judge.

OPINIONBY: Thomas P. Smith

OPINION: [*207]

RULING ON PLAINTIFF'S MOTION TO COMPEL

The plaintiff brings this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110a. Now pending before the court is the plaintiff's motion to compel discovery. n1

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n1 The plaintiff's motion seeks discovery compliance by both defendants, Paul Hooten and Thomas Rathgeb. Defendant Hooten alone opposed the plaintiff's motion, pointing out in his opposition memorandum that the plaintiff's certificate of service reveals that the motion to compel was served on defendant Rathgeb at an address different from that listed in his notice of appearance filed with the court. As defendant Rathgeb was not properly served with the instant motion to compel pursuant to Fed. R. Civ. P. 5(b), the court's ruling on this motion is directed solely to defendant Hooten. The plaintiff's motion to compel is DENIED as to defendant Rathgeb, without prejudice to its renewal upon proper service and noncompliance. The court notes, however, that renewal may not be necessary, as defendant Hooten will likely be able to provide any court ordered discovery.


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As a general proposition, the discovery rules contained in the Federal Rules of Civil Procedure are to be construed broadly. A valid discovery request need only "encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 57 L. Ed. 2d 253, 98 S. Ct. 2380 (1978); see Hickman v. Taylor, 329 U.S. 495, 501, 91 L. Ed. 451, 67 S. Ct. 385 (1947); Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230, 236 (2d Cir. 1985). Limits do, however, exist. Discovery of matter not "reasonably calculated to lead to the discovery of admissible evidence" is not within the scope of Fed. R. Civ. P. 26(b)(1). Oppenhiemer Fund, Inc., 437 U.S. at 351-52. The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by "determining the relevance of discovery requests, assessing their oppressiveness, and weighing these factors in deciding whether discovery should be compelled." In re Multi-Piece Rim Products Liability Litigation, 209 U.S. App. D.C. 416, 653 F.2d 671, 679 (D.C. [**3] Cir. 1981); Brenner v. Silver, Golub and Sandak, No. B-88-283(EBB), slip op. at 2-3 (D. Conn. August 25, 1989). Having outlined these general rules relating to discovery, the court now turns to the pending motion to compel.

The plaintiff posed discovery requests which she argues relate to her claim that the defendants attempted to evade Connecticut licensing obligations by the use of the name of Thomas Rathgeb as signatory for collection letters sent into Connecticut. The defendant objects to many of these interrogatories and requests for production primarily because the information sought does not "comport with the traditional notions of relevancy, and imposes an undue burden on the defendants and their efforts to defend this [*208] meritless action." (Def.'s Mem. Opp. to Pl.'s Mot. Comp. at 4.) n2 Rather than examine the disputed discovery on the basis of these general objections, the court will address each discovery request individually, taking into account the defendant's basis for objection and the justification offered by the plaintiff.

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n2 Specifically, the defendant claims that the plaintiff is on a "fishing expedition," and is using the contested discovery not in an effort to obtain admissible evidence, but only for the purpose of harassing the defendants in an attempt to obtain a settlement of the action. As support for this proposition, the defendant points to the plaintiff's brief statements in support of her motion to compel each contested discovery request.


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Interrogatory (2): GRANTED
As to each such letter, provide an estimate of the number of times that form of letter was sent to any Connecticut debtor during 1997.


The plaintiff claims this "request is for the purpose of establishing the intentional nature, frequency and persistence of noncompliance, as required by 15 U.S.C. § 1692k." (Pl.'s Mem. Supp. Mot. Comp. at 4.) The defendant offers no support for his interpretation of 15 U.S.C. § 1692k as referring to the debt collector's conduct toward a specific debtor, not to all debtors. Therefore, the court finds this request to be reasonably calculated to lead to the discovery of admissible evidence.

Interrogatory (3): GRANTED
Describe in detail the financial and business relationship between each defendant and plaintiff's creditor (hereafter "creditor"), e.g., billing method, rate, frequency and media; expenses billed: funds remittance method, rate, frequency and media; the nature and extent of services rendered (e.g. letter only, letter followed by suit in what circumstances); fee arrangement for each identified type of service; whether communication is direct or indirect, such as through [**5] a collection agency as intermediary.


The plaintiff argues that this request is related to her belief that the defendants are operating as an unlicensed collection agency, not as attorneys. The defendant responds that whether the defendants are acting as a collection agency or as attorneys is irrelevant to the instant action because the FDCPA applies to all "debt collectors," including both collection agencies and attorneys. See Heintz v. Jenkins, 514 U.S. 291, 299, 131 L. Ed. 2d 395, 115 S. Ct. 1489 (1995) (the FDCPA applies to attorneys who regularly engage in consumer debt collection activities). While this is certainly the case, the requested information may still lead to the discovery of admissible evidence relating to the alleged attempts of defendant Hooten, who is not licensed to practice in Connecticut, to evade the Connecticut collection agency licensing requirements found in Chapter 669 Part XII of the Connecticut General Statutes by using defendant Rathgeb's name on collection letters sent into Connecticut. Precisely because defendant Hooten claims his relationship with defendant Rathgeb exempts him from the Connecticut licensing statute, the plaintiff is entitled [**6] to discovery concerning the nature of the relationship between each defendant and the plaintiff's creditor.

Interrogatory (4); GRANTED
Identify Thomas Rathgeb.


The defendant does not contest that he has failed to identify Thomas Rathgeb in accordance with Local Civil Rule 39(c)(3). n3 Rather he requests a protective order from the court allowing his response (that Mr. Rathgeb is an attorney admitted to practice in Connecticut and "of counsel" to defendant Hooten) to stand due to his fear that disclosing Mr. Rathgeb's residential and business address will lead to further harassment by the plaintiff. The court declines to limit the plaintiff's discovery in this manner. She is entitled to the information outlined in Local Rule 39(c)(3), and the defendant is ordered to [*209] provide it in its entirety. Should the defendant feel the information is subsequently misused, he may then bring the matter to the court's attention by way of a motion for sanctions.

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n3 The Local Rule states:
Identify (With Respect to Persons). When referring to a person, to 'identify' means to provide, to the extent known, the person's full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment.


Rule 39(c)(3), Loc. R. Civ. P. (D. Conn.).


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Interrogatory (5): GRANTED
Describe in detail the financial and business relationship between the Hooten office and Thomas Rathgeb, including all changes or modifications since its inception, e.g., billing method, rate, frequency and media; expenses billed: funds remittance method, rate, frequency and media; the nature and extent of services rendered (e.g. letter only, letter followed by suit in what circumstances); fee arrangement for each identified type of service.


As stated in the court's analysis of Interrogatory (3) above, this information may lead to the discovery of admissible evidence relating to the alleged attempts of defendant Hooten, who is not licensed to practice in Connecticut, to evade the Connecticut collection agency licensing requirements found in Chapter 669 Part XII of the Connecticut General Statutes by using defendant Rathgeb's name on collection letters sent into Connecticut.

Interrogatory (7): GRANTED
In what percent of the number of cases set forth in response to Int. 6 has defendant filed suit in Connecticut if the debtor did not pay?


The plaintiff contends this information bears on whether (1) the defendants [**8] are acting as a collection agency or as attorneys and (2) the use of defendant Rathgeb's name on collection letters is deceptive. The defendant argues this interrogatory is not relevant to the subject matter of the litigation because the plaintiff does not allege that the defendants never intended to file suit against the debtor; rather the plaintiff's complaint states that the defendants falsely implied the ability to do more than a collection agency, even though that implication was not true. This argument is an exercise in semantics. The issue is whether the defendants would file suit against debtors in Connecticut, and the requested information could lead to the discovery of admissible evidence on that point.

Interrogatory (9): GRANTED
Identify defendant's correspondent attorney(s) in Connecticut and sent[sic] forth for each month since March, 1995, the number and type of matters forwarded to each such attorney for litigation.


Although the defendant originally objected to this interrogatory because he misunderstood it, he appears to have no objection to answering it at this time, as he provides an answer in his opposition memorandum. Accordingly, the [**9] defendant is directed to respond to this interrogatory under oath.

Interrogatory (10): GRANTED
Describe, step-by-step, the process which resulted in defendant's letter(s) being sent to plaintiff, beginning with the date of transmission of debtor information, e.g., computer tapes or other media delivered (when, by whom, where and to whom); content of computer tape or media; data input (where and by whom); computer entry or other means of directing transmission letters (where and by whom entry made); letter with debtor information printed (where and by whom); letter with debtor information mailed (from where and by whom); computer tapes or media returned (on what occasion, when, by whom and to whom).


The plaintiff states this information is related to whether (1) the defendants are acting as a collection agency or attorneys and (2) the use of defendant Rathgeb's name on collection letters sent into Connecticut is deceptive. The defendant responds with the now familiar argument concerning the FDCPA's application to both attorneys and debt collectors alike. However, regardless of the FDCPA's applicability to attorneys, this information could lead to the discovery [**10] of admissible evidence concerning defendant Hooten's activities as an allegedly unlicensed debt collector in contravention of Chapter 669 Part XII of the Connecticut General Statutes.

[*210] Interrogatory (11): GRANTED
State the location (address including floor) and owner of the copier, printer or other mechanical device which printed the defendant's collection letters to plaintiff.


While the defendant originally objected to this interrogatory, he states in his opposition memorandum that he now wishes to answer it. Therefore, he is directed to do so under oath.

Interrogatory (12): GRANTED
Identify all documents related to plaintiff's alleged debt which were in each defendant's physical possession when letters bearing a letterhead of defendant were transmitted to plaintiff about the plaintiff's alleged debt.


The parties make the same arguments in support of and objection to this interrogatory request as they do in the case of interrogatories 3, 5, and 10. The court responds with the same conclusion: this information may lead to the discovery of admissible evidence concerning the alleged attempts of defendant Hooten, who is not licensed [**11] to practice in Connecticut, to evade the Connecticut collection agency licensing requirements found in Chapter 669 Part XII of the Connecticut General Statutes by using defendant Rathgeb's name on collection letters sent into Connecticut. n4

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n4 The plaintiff indicates in her support memorandum that the defendant originally objected to this interrogatory on the grounds of attorney work product immunity and responds to this contention. However, because the defendant's opposition memorandum does not make this argument as to Interrogatory (12), the court will not address the issue here.




- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -Interrogatory (13): GRANTED
What steps were taken, on what date, and by whom to review plaintiff's account before sending said letters?


As the defendant's opposition memorandum does not specifically address this interrogatory, the court assumes that the defendant no longer objects. Furthermore, the request could lead to the discovery of admissible evidence concerning whether the use of defendant Rathgeb's [**12] name on collection letters sent into Connecticut is deceptive.

Interrogatories (14) and (15): GRANTED
State the job description for each staff member each defendant employs at each of his locations (paralegal, secretary, etc.) and how many staff members are employed in each such job description at each such location.

Identify all staff personnel at defendant's New York office.


The plaintiff contends these interrogatories relate to whether (1) the defendants are acting as a collection agency or as attorneys and (2) the use of defendant Rathgeb's name on collection letters is deceptive. The defendant argues that the information sought is not relevant to the subject matter of the litigation because the plaintiff does not claim that the defendants' staff violated the FDCPA, rather that the defendants did. Additionally, the defendant points out that none of the employees of defendant Hooten's law firm except defendant Rathgeb are parties to the lawsuit and that the plaintiff will not be able to depose these non-parties because she previously reported that she would take only one deposition. Finally, the defendant relies upon its argument concerning [**13] the FDCPA's application to attorneys and debt collectors alike. Once again, the court finds that these requests could lead to the discovery of admissible evidence concerning whether the use of defendant Rathgeb's name on collection letters sent into Connecticut is deceptive.

Interrogatories (16) and (17): GRANTED
Identify all Thomas Rathgeb's employers since 1990.

State when Exxon Research became aware of and approved of Mr. Rathgeb's collection activity.


The plaintiff argues that these interrogatories relate to whether (1) the defendants are acting as a collection agency or as attorneys and (2) the use of defendant Rathgeb's name on collection letters is deceptive. The defendant responds that the [*211] information is not relevant because Exxon Research is not a party to this action, and whether Exxon Research knew of or approved of defendant Rathgeb's employment with defendant Hooten's law firm is irrelevant. Additionally, the defendant asserts its belief that the plaintiff's counsel seeks this information in an improper attempt to coerce the defendants into settlement of this action. The court finds that the information requested could lead to the [**14] discovery of admissible evidence concerning whether the use of defendant Rathgeb's name on collection letters sent into Connecticut is deceptive. Once again, if the plaintiff improperly uses this information, the defendant may bring the matter to the court's attention by way of a motion for sanctions.

Interrogatories (19) and (20): GRANTED
List all lawsuits filed by defendant Rathgeb in Connecticut during 1996-1997.

Identify all Connecticut clients of defendant Rathgeb in any private practice of law during 1996-97.


The plaintiff contends these interrogatories relate to whether (1) the defendants are acting as a collection agency or as attorneys and (2) the use of defendant Rathgeb's name on collection letters is deceptive. The defendant argues that these interrogatories are not relevant to the subject matter of the litigation because the plaintiff does not allege that the defendants never intended to file suit against the debtor, rather that they could not file a lawsuit in Connecticut. Since defendant Rathgeb is admitted to practice in Connecticut, and regardless of defendant Rathgeb's bar admittance, the defendants could hire other local counsel [**15] to file a lawsuit on behalf of their client should it so desire, the defendant contends the firm clearly could do more than a collection agency and the information sought is not relevant. Furthermore, the defendant claims the identity of defendant Rathgeb's private practice clients is protected by attorney-client privilege. The plaintiff does not respond to this privilege argument.

The Second Circuit has "consistently held that, absent special circumstances, client identity and fee information are not privileged. . . . While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the ordinary communication necessary for an attorney to act effectively, justly, and expeditiously." In re Grand Jury Subpoena Served upon Doe, 781 F.2d 238, 247-48 (2d Cir.) (en banc), cert. denied sub nom. Roe v. United States, 475 U.S. 1108, 89 L. Ed. 2d 914, 106 S. Ct. 1515 (1986). Thus, the identity of defendant Rathgeb's clients are not privileged. And because the requested information may lead to admissible evidence concerning whether the defendants would file lawsuits in Connecticut and whether the use of defendant Rathgeb's [**16] name on collection letters sent into Connecticut is deceptive, the defendant is directed to respond to these discovery requests in their entirety.

Production Request (1): GRANTED
All documents transmitted to defendant by or on behalf of plaintiff's creditor or any other person or entity with regard to the alleged debt to Chevy Chase (hereafter "creditor").

Log: The document sought is a computer printout of account information on the claim that is the subject matter of this lawsuit, the document is dated March 25, 1997, and was received by defendant Hooten's office. There is no author of the document.


The plaintiff contends that she is entitled to this document as there is nothing privileged about it on the face of the defendant's log. The defendant, however, argues that work product immunity is properly asserted because the plaintiff's creditor prepared the requested document in contemplation of litigation, and the plaintiff has failed to show there is a substantial need for the document and that she is unable to proceed in her case without it. n5 The court disagrees, [*212] however, that the computer printout of account information was prepared in [**17] contemplation of litigation. Given the great number of accounts referred to collection agencies and the few which are actually litigated, it is not reasonable to assume that the plaintiff's creditor anticipated litigation in creating the computer printout it transmitted to the defendants. See Snyder v. Winter, 159 F.R.D. 14, 15 (W.D.N.Y. 1994) (under the Federal Rules of Civil Procedure, material prepared by non-attorneys in anticipation of litigation, such as an accident report, is immune from discovery only where the material is prepared in specific response to imminent litigation; mere contingency that litigation may result does not give rise to immunity); Carolan v. New York Telephone Co., 1984 U.S. Dist. LEXIS 16613, 1984 WL 368, at *3 (S.D.N.Y. May 17, 1984)(The work product immunity embodied in Rule 26(b)(3) is limited to documents prepared specifically with a pending or impending lawsuit in mind; if not already commenced, "'the probability that some particular litigation will occur must be substantial before a document may be deemed to be in anticipation of litigation.'")(quoting Duplan Corp. v. Deering Milliken, Inc., 61 F.R.D. 127, 130 (D.C.S.C. 1973), rev'd on other grounds sub nom. Duplan [**18] Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973)(citation omitted)). And since the plaintiff's creditor cannot have anticipated the instant litigation, the document is not privileged, and the plaintiff is entitled to its production.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 Rule 26(b)(3) states:
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means . . . .


Fed. R. Civ. P. 26(b)(3).




- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -Production Request (2): GRANTED [**19]
All documents (or the form thereof if not available) transmitted by defendant to plaintiff, to creditor, or to any other person or entity with regard to the alleged debt to creditor.


The plaintiff contends that she is entitled to these documents as they are not privileged. The defendant argues that, while he has produced all documents the defendants transmitted to the plaintiff, any documents sent to the creditor are irrelevant to the instant matter and/or protected by attorney-client privilege or attorney work product immunity. The court fails to see any basis upon which to apply privilege or immunity to these communications, and the defendant has offered none. As the documents may lead to the discovery of admissible evidence concerning the defendants' debt collection practices, the defendant is directed to provide them.

Production Requests (3) and (4): GRANTED
All documents indicating authorization to represent plaintiff's creditor.

All agreements between each defendant and plaintiff's creditor.

Log: The document sought is a contract entered into between the creditor and Paul J. Hooten, the document concerns the scope [**20] of engagement, was entered into in January, 1996, and was received by defendant Hooten and the creditor. There is no author of the document.


The plaintiff contends that she is entitled to this document as it is not privileged. The defendant objects to this discovery as irrelevant to this matter and/or protected by attorney-client privilege or attorney work product immunity. The court finds that the document may lead to the discovery of admissible evidence concerning the defendants' debt collection activities. Furthermore, the court can find no reason to invoke the protection of the attorney work product doctrine, and the defendant fails to offer any. Finally, the document is not protected by attorney-client privilege, as the privilege does not extend to the general nature of the legal services a lawyer is retained to perform or to the terms and conditions of a lawyer's engagement. See, e.g., Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir.) ("That memorandum contained no confidential information. It did little more than reveal the relationship between the parties, the purpose for which the Law Firm had been engaged, and [*213] the steps which the Firm intended [**21] to take in discharging its obligation to [the client]. Such a document is not privileged."), rev'd on reh'g en banc, 572 F.2d at 609 (8th Cir. 1978). The defendant is therefore directed to respond to these production requests.

Production Requests (5) & (6): GRANTED
All collection records maintained by defendant as to plaintiff's account, with a key to abbreviations used thereon, such as codes for letters, personnel, activities.

All documents, logs and correspondence relating to plaintiff's alleged debt to creditor

Log: The document sought is maintained on a computer, and is a record of all collection activity, the record is cumulative and has no date, there is no author of the record, and the document has no recipient.


The plaintiff contends that she is entitled to this document as it is not privileged. The defendant objects to this discovery as irrelevant to this matter and/or protected by attorney-client privilege or attorney work product immunity. The court finds the document may lead to the discovery of admissible evidence concerning the defendants' debt collection activities. Additionally, the defendant does not provide, nor [**22] can the court find, any reason to invoke the attorney-client privilege. With respect to the defendant's claimed attorney work product immunity, due to the great number of accounts referred to collection agencies and the few which are actually litigated, it is not reasonable to assume that the defendants prepared the collection record in anticipation of imminent litigation. Thus, the defendant is directed to provide the document sought by these discovery requests.

Production Request (7): GRANTED
Copies of any policy manuals or instructions used by defendants or persons under their supervision regarding collection practices or procedures.

Log: The document sought is a new employee packet containing conditions of employment, and a copy of the FDCPA, the document is not dated, there is no author, and is received by all new employees.


The plaintiff contends that she is entitled to this document as it is not privileged. The defendant responds that the document sought is irrelevant to the subject matter of the case at bar because the plaintiff does not allege that any of the defendants' employees committed any FDCPA violations, only that the defendants [**23] themselves did so. The court disagrees, as the information sought could lead to the discovery of admissible evidence concerning the defendants' debt collection practices.

Production Request (9): GRANTED
All listings or ads in any telephone directory, yellow pages, legal directory, magazine, or newspaper during 1996-97 referring or relating to defendant's law practice.


The plaintiff contends that this request goes to the nature of the defendants' mutual practice, and that the documents are not readily available to the plaintiff due to her distant geographical location and the fact that she would not know where to look. The defendant objects to this discovery request on the grounds that the documents are irrelevant and are also public records that are readily available to the plaintiff without the need for discovery.

As for the documents' relevancy, the court agrees with the plaintiff that the information sought may lead to the discovery of admissible evidence concerning the nature of the defendants' mutual practice, thus shedding light on the plaintiff's claim regarding the defendants' attempts to evade Connecticut licensing requirements. Furthermore, the [**24] plaintiff is entitled to discovery of the documents from the defendants, as opposed to some other source, because the other sources are neither more convenient, less burdensome, nor less expensive. Fed. R. Civ. P. 26(b)(2).

Production Request (10): GRANTED
A copy of all demand letters, complaints, judgments, and consent orders relating [*214] to defendant's conduct in the collection of individuals' debts to creditors.


The plaintiff contends that this request goes to the nature of the defendants' mutual practice. The defendant initially responded that the requested documents are too voluminous to reproduce and irrelevant insofar as they relate to other debtors. The plaintiff has since clarified the limited scope of her request--namely, demand letters sent to defendants and complaints against defendants in their debt collection capacity. Thus, the only remaining objection appears to be one of relevancy, which the court overrules, as the information may lead to the discovery of admissible evidence concerning the defendants' debt collection practices. The defendant also states there is no need for discovery of these documents because the plaintiff's counsel is the only [**25] attorney who has sued the defendants for their debt collection practices, and therefore has copies of the requested demand letters or complaints. If this is indeed the case, the defendant is directed to so state under oath. If there exist additional demand letters or complaints responsive to the discovery request, the defendant is directed to produce the documents as they are deemed discoverable.

Production Request (12): GRANTED
Please produce any insurance agreement under which any person carrying on an insurance business may be liable to satisfy all or part of a judgment which may be entered herein or to indemnify or reimburse for payments made to satisfy the judgment.


The plaintiff contends this request is plainly permitted by Federal Rule of Civil Procedure 26(a)(1)(D). n6 The defendant responds that Local Civil Rule 37 deems Federal Rule 26(a) inapplicable in the District of Connecticut. n7 This being the case, the defendant argues that the demand is irrelevant to this matter. The court does not agree. Despite the inapplicability of Rule 26(a)(1), insurance information may still be discoverable upon request if it is within the scope of discovery as outlined [**26] in Rule 26(b)(1). n8 As the court finds the request to be within the appropriate scope of discovery, the defendant is directed to respond to this production request.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n6 The Federal Rule states:
(1) Initial Disclosures. Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties:
. . .

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.


Fed. R. Civ. P. 26(a).


n7 The Local Rule states:
Rule 26(a)(1) of the Federal Rules of Civil Procedure shall not be applicable in the District of Connecticut.


Rule 37, Loc. R. Civ. P. (D. Conn.).


n8 Rule 26(b)(1) states:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.


Fed. R. Civ. P. 26(b)(1).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**27]

Production Request (Cool,(13), (16) and (17): GRANTED
Copies of any records showing fees/emoluments paid by the Hooten office to defendant Rathgeb during each year since the inception of the time Attorney Rathgeb's name was included in any Hooten letterhead.

All time and expense records of defendant Rathgeb related to the Hooten collection efforts.

All W-2, 1099 or similar tax reporting forms (relating to services rendered) received by defendant Rathgeb for 1995-97.

All W-2, 1099 or similar tax reporting forms sent by the Hooten office to defendant Rathgeb for 1995-97.


The defendant argues that the documents sought in these requests are irrelevant to this litigation. Additionally, the defendant [*215] contends that the information sought in requests (16) and (17) are confidential. The plaintiff responds that this information goes to the nature of defendant Rathgeb's participation in the Hooten collection efforts. As to the documents' confidentiality, the plaintiff points out that the defendant has not filed a motion for a protective order nor have they offered information sufficient to meet their burden of persuasion pursuant to Fed. [**28] R. Civ. P. 26(c). See In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 145 (2d Cir. 1987) (a plain reading of Rule 26(c) illustrates that the party seeking protection has the burden of showing that good cause exists), cert. denied sub nom. Dow Chemical Co. v. Ryan, 484 U.S. 953, 98 L. Ed. 2d 370, 108 S. Ct. 344 (1987); Havens v. Metropolitan Life Insurance Co., 1995 U.S. Dist. LEXIS 5183, *29, No. 94- CV-1402, 1995 WL 234710, at *10 (S.D.N.Y. April 20, 1995) (the party seeking protection is required to establish good cause by a "'particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements'") (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). n9

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n9 Rule 26(c) states:
Upon motion by a party or by the person from whom discovery is sought . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

. . .

(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters . . . .


Fed. R. Civ. P. 26(c).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**29]

In support of his confidentiality argument, the defendant contends that Congress supplanted the requirements of Rule 26(c) with the provision in the Internal Revenue Code stating that "returns and return information shall be confidential," thus evidencing Congress' intent that tax returns and tax return information be kept confidential. 26 U.S.C. § 6103(a). Additionally, the defendant argues that public policy disfavors the production of tax returns and return information due to their highly sensitive nature. Finally, in the event that the court finds the information discoverable, the defendant suggests that the court limit its ruling to the income earned, if any, by defendant Rathgeb through his employment with defendant Hooten's law firm, as information concerning defendant Rathgeb's other sources of income is irrelevant to the instant litigation.

The court is not persuaded by the defendant's argument that the Tax Code's designation of tax information as confidential somehow obviates the need for the defendant to satisfy the requirements of Rule 26(c). The defendant offers no authority in support of this position, and the court can find none. n10 On the contrary, "tax returns [**30] and other information regarding income are discoverable if relevant to the issues in a lawsuit." Scott v. Arex, 124 F.R.D. 39, 41 (D. Conn. 1989) (citing Halperin v. Berlandi, 114 F.R.D. 8, 11 (D. Mass. 1986) and Credit Life Insurance v. Uniworld Insurance Ltd., 94 F.R.D. 113, 120 (S.D. Ohio 1982)). However, the defendant's "income tax returns, even if containing some relevant financial information, are protectable from discovery as confidential documents if the party seeking protection demonstrates good cause to uphold its expectation of confidentiality, as well as the availability of reliable financial information from other sources." Farmers & Merchants Nat. Bank, 174 F.R.D. 572, 585.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n10 In fact, a case to which the defendant does cite, Farmers & Merchants Nat. Bank v. San Clemente Financial Group Securities, Inc., 174 F.R.D. 572 (D.N.J. 1997), discusses a magistrate judge's denial of a motion to compel production of income tax returns as "within the reasonable ambit of protective orders under Rule 26(c)." Id. at 585.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**31]

The defendant contends he has good reason for objecting to disclosure of the tax documents and tax related information, that being the broad nature of the request and irrelevance of the information to the instant litigation. Additionally, the defendant states that the plaintiff can obtain the information sought through other discovery devices, though he fails to indicate which devices those may be. The court finds the requested financial information could lead to the discovery of admissible evidence concerning the [*216] ature of defendant Rathgeb's participation in the Hooten collection efforts. Additionally, the defendant has failed to shoulder his burden of establishing good cause pursuant to Fed. R. Civ. P. 26(c). The defendant is therefore directed to supply the requested information in its entirety.

Production Request (20): GRANTED
The summons page of each suit filed by or on behalf of each defendant for creditor plaintiffs in Connecticut during 1996-97.


The plaintiff asserts this information goes to the nature of defendant Rathgeb's participation in the Hooten collection efforts. The defendant objects to this discovery request on the grounds that it is [**32] irrelevant to the instant matter. The court disagrees, as the information requested could lead to the discovery of admissible evidence concerning the defendants' debt collection practices.

Production Request (21): GRANTED
All documents reflecting defendant's Connecticut licensing in a business or profession issued or effective since 1990.


The defendant argues that this request is irrelevant because the defendants have admitted that defendant Rathgeb is a member of the Connecticut Bar and the defendants have no other licenses from Connecticut. The defendant is directed to provide documentation evidencing Mr. Rathgeb's admittance to the Connecticut Bar, and, if the defendants maintain no other licenses in Connecticut, to so state under oath.

CONCLUSION

For the above reasons, the plaintiff's motion to compel (doc. # 21) is GRANTED.

IT IS SO ORDERED.

Dated at Hartford, Connecticut this 5th day of May, 1998.

Thomas P. Smith

United States Magistrate Judge
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« Reply #3 on: October 12, 2007, 09:46:22 PM »

Mary J. GAETANO, Plaintiff,
v.
PAYCO OF WISCONSIN, INC., Defendant.

Civ. No. N-89-220 (TFGD).

United States District Court, D. Connecticut.

June 20, 1990.

Joanne S. Faulkner, New Haven, Conn., for plaintiff.

Lewis Lerman, Susan Chambers, Ann H. Rubin, Carmody & Torrance, New Haven, Conn., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DALY, District Judge.

Plaintiff, Mary Gaetano, alleges that the defendant, Payco of Wisconsin, Inc. ("Payco"),

violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o, in its efforts to collect a credit card debt of $6,017.67 on behalf of Chase Manhattan Bank, N.A. ("Chase"). Both the plaintiff and the defendant seek summary judgment on plaintiff's claims.

Summary Judgment Standards

Viewing the record in the light most favorable to the non-moving party, summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the evidence offered raises no genuine disputes of material fact and the moving party is entitled to summary judgment as a matter of law. Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 139 (2d Cir.1989). To defeat such a motion, the non-moving party must offer concrete evidence tending to show that its claim is more than fanciful, see id.; Fed. R.Civ.P. 56(e); or, alternatively, must show that the movant is not entitled to summary judgment as a matter of law.

This burden remains the same even when cross-motions for summary judgment have been filed. Knowles v. Postmaster General, 656 F.Supp. 593, 597 (D.Conn. 1987). The Court must consider each party's motion on its own merits, drawing all reasonable inferences from the record against the party's whose motion is under review. Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981). Since the facts of this case are straight-forward, the Court will review them in the context of its evaluation of the legal merits of the pending motions.

Discussion

A) The FDCPA

The FDCPA prohibits, inter alia, a debt collector from employing "false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. § 1692e. To determine whether a collection demand is misleading or deceptive, courts employ the "least sophisticated consumer" standard — inquiring whether the least sophisticated debtor would likely be misled or deceived by the collection notice at issue. Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988); see also Exposition Press, Inc. v. F.T.C., 295 F.2d 869, 873 (2d Cir.1961) ("look not to the most sophisticated [consumer,] but to the least"). Since the FDCPA is a strict liability statute, the plaintiff need only show one violation of its provisions to be entitled to summary judgment. Colmon v. Payco-General American Credits, Inc., 774 F.Supp. 691, 693 (D.Conn.1990); Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 175-76 (W.D.N.Y.1988).

B) Plaintiff's Summary Judgment Motion

1) False Statements

Plaintiff's first claim is that defendant falsely stated in its second collection notice that "[a]n investigation has disclosed that you are employed...." Plf.Exh. B. By so stating, the plaintiff argues, defendant violated section 1692e(10)'s prohibition against making false representations in order to collect a debt or to obtain information about the consumer. Plaintiff contends that defendant's notice was "intended to smoke her out by having her call, to confirm or deny, or to plead with defendant not to contact her employer." Plf.Mem. at 5 (2/27/90).

The undisputed record indicates that, pursuant to the terms of the collection agreement, on or about November 3, 1988 Chase provided the defendant with information indicating that plaintiff "was employed by Gutkin Caterers, Whaley [sic] Avenue, New Haven, Connecticut and that the telephone number of Gutkin Caterers was 203/562-6185." Roznik Aff. at ¶ 5. Also undisputed is that defendant tried calling that number on November 15, 1988 only to find that it was not in service at that time. Id. at ¶ 7. On November 16, 1988, the defendant then sent to plaintiff its second collection notice including therein the sentence quoted above.

Plaintiff contends that the statement was untrue because no investigation was undertaken and because defendant's information was "merely that [plaintiff] had been employed." Plf.Mem. at 1 (3/28/90). The

Court disagrees. The defendant did investigate plaintiff's employment status. That defendant gleaned its information from Chase pursuant to standard procedures established in the collection agreement does not detract from this fact. Additionally, defendant investigated by attempting to verify the employment by telephoning the number given it for Gutkin Caterers. The defendant did not violate the FDCPA by failing to state that Gutkin Caterer's phone was not in service at the time the defendant attempted to reach the employer. Significantly, nor did defendant state that it had verified plaintiff's place of employment. Simply because the alleged employer's phone was not in service at the time of the call, did not mean that Gutkin Caterers no longer employed the plaintiff. In the absence of evidence indicating that the defendant knew that plaintiff no longer worked for that caterer or that defendant knew that the caterer never existed or had gone out of business, the Court finds no violation and this claim is dismissed.

Apparently1, plaintiff also claims that the defendant violated the FDCPA by threatening to sue when it had no intention or ability to sue and by falsely stating that it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS" when it did not intend to do so.2 Plf.Exh. A. She also asserts that the following statements threaten litigation which the defendant did not intend to pursue: 1) "WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS ... AND ANY INFORMATION WE OBTAIN WILL BE USED AS A BASIS TO ENFORCE COLLECTION OF THE DEBT"; and 2) the "ACCOUNT HAS BEEN GIVEN TO US FOR IMMEDIATE ACTION." Plf.Exh. A.

The FDCPA prohibits debt collectors from threatening action that cannot legally be taken as well as threatening action that they do not intend to undertake. 15 U.S.C. § 1692e(5). Also, forbidden is the use of any false representation or deceptive means to collect or to attempt to collect a debt. 15 U.S.C. § 1692e(10). Plaintiff argues that the defendant violated both of these provisions.

Plaintiff's argument that the defendant violated the first of these provisions misses the mark in two respects. First, plaintiff has offered no evidence, other than counsel's bald assertions, regarding defendant's intent as to any future actions. Second, and more importantly, the Court does not construe the quoted language as threatening litigation. Significantly, the quoted passages contain no reference, either direct or implicit, to suit, lawsuit, legal action, or litigation. Though plaintiff relies on Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir.1989), that case is distinguishable from the one at bar. In Pipiles, the second notice sent to the debtor stated:

Notice is Hereby Given That this Item Has Already Been Referred for Collection Action; We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure Payment In Full, [and] Pay this Amount Now If Action Is To Be Stopped.

Id. at 25. Not only is the substance of these statements in many respects more harsh than those made to plaintiff here (and though the debt collector there conceded that the only further action it contemplated was telephone contact), Pipiles differs materially from the case at bar because the consumer had already received an initial collection notice from the debt collector and the second notice given clearly threatened more drastic consequences for non-payment (i.e., legal action). See id. ("clear import of the language, taken as a

whole, is that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment"). For these reasons, the Court dismisses plaintiff's claims that the defendant threatened, without intent, to sue and thereby also falsely represented its intentions as a means of debt collection.

Granting summary judgment on plaintiff's other claim, that defendant falsely stated it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT", is inappropriate. To support this claim, plaintiff argues that the defendant had over two dozen collection letters available, which it did not intend to use and which establishes that defendant made false representations in order to collect a debt. Other than counsel's bald assertion, plaintiff has not offered any evidence supporting the number of collection letters defendant had available for use. Nor has she offered any evidence of defendant's intent with respect to the statement at issue. In similar fashion, defense counsel also makes bald assertions regarding defendant's intent and the number of collections letters. Given the failure of the parties to offer evidence, see Fed.R.Civ.P. 56(c), supporting counsels' arguments, this claim must await trial and summary judgment is denied.

2) Statutorily Required Notices

Plaintiff also contends that the defendant failed to comply with several FDCPA notice provisions. The first of these requires that the debt collector "disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11).

On November 9, 1988 the defendant sent a demand for payment to the plaintiff, indicating in the second paragraph on the reverse side of the demand that:

WE ARE A PROFESSIONAL COLLECTION AGENCY ATTEMPTING TO COLLECT A DEBT. WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS WHICH HAVE BEEN REFERRED TO US AND ANY INFORMATION WE OBTAIN WILL BE USED AS A BASIS TO ENFORCE COLLECTION OF THE DEBT.

Plf.Exh. A.

Plaintiff argues that the least sophisticated consumer would not be able to divine the required disclosure in the paragraph because of the use of "non-required verbiage" and "extraneous intimidating language." Once again, the Court disagrees and holds that the disclosure was "clearly" conveyed within the contemplation of the FDCPA.

Plaintiff concedes that the statement made contains the required notice. Therefore, this case is distinguishable from those finding liability for the failure to do so. See, e.g., Traverso v. Sharinn, N-88-446(WWE), 15 CLT No. 39 (D.Conn. Sept. 15, 1989). The section 1692e(11) notice is designed to give a debtor notice that she is dealing with a collection agency, attempting to collect a debt, and which will use any information it obtains for that purpose. Defendant's notice comports with that purpose and the defendant's decision not to use the statutory language does not obfuscate the basic message to be conveyed.3 See Emanuel v. American Credit Exchange, 870 F.2d 805, 808 (2d Cir.1989) ("There is no requirement that the letter quote verbatim the language of the statute."). As a matter of law, plaintiff is not entitled to summary judgment on this claim. Rather, the entry of summary judgment in defendant's favor is warranted. Therefore, this claim is dismissed.

Plaintiff also argues that the defendant failed to meet its statutory obligations by obscuring what is commonly referred to as the "debt validation notice." More specifically, plaintiff contends that the defendant failed to comply with that part of 15

U.S.C. § 1692g(a)4, which provides that the debt collector must send the consumer written notice advising that debt will be assumed to be valid unless the consumer notifies the debt collector, within thirty days of the receipt of such notice, that the validity of the debt, or any portion thereof, is disputed.

Across the top of the front page of defendant's first collection notice in large, red, boldface type were the words "DEMAND FOR PAYMENT". Plf.Exh. A. Slightly more than one-third of the way down the front page, also in red, (slightly smaller) boldface type are the words "THIS IS A DEMAND FOR IMMEDIATE FULL PAYMENT OF YOUR DEBT". In the middle of the page is the following statement: "YOUR SERIOUSLY PAST DUE ACCOUNT HAS BEEN GIVEN TO US FOR IMMEDIATE ACTION. YOU HAVE HAD AMPLE TIME TO PAY YOUR DEBT, BUT YOU HAVE NOT. IF THERE IS A VALID REASON, PHONE US AT (414) 784-6565 TODAY." Id. Immediately below that statement in black, boldface type are the words, "IF NOT, PAY US — NOW". Id. In roughly the bottom third of the front page, in purported 126 point type, is the word "NOW". Id. Finally, in the bottom inch of the page, in white letters set off by a dark red background is the statement: "NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION". Id.

On the reverse side of this document in the second paragraph (below the one containing the § 1692e(11) notice) in gray type against a white background is the statement:

THIS DEBT WILL BE ASSUMED TO BE VALID BY THE COLLECTOR UNLESS THE CONSUMER, WITHIN THIRTY DAYS AFTER RECEIPT OF THIS NOTICE, DISPUTES THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF.

Id. Eight days after defendant sent its first collection notice to plaintiff, it sent her a second notice, omitting any reference to the validation notice, and demanding that plaintiff "make payment in full today or phone (414) 784-6565." Plf.Exh. B.

The debt validation notice is designed to fulfill congressional intent to "eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S.Rep. No. 382, 95th Cong.2d Sess. 4, reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1699. Though the statute does not require that the debt validation language be of a particular format, type size, location, or conspicuousness, Blackwell v. Professional Business Services, 526 F.Supp. 535, 538 (N.D.Ga.1981), courts have held that a debtor cannot satisfy its requirements simply by timely stating the requisite language in its collection notice.

The statute is not satisfied merely by inclusion of the required debt validation notice; the notice Congress required must be conveyed effectively to the debtor. It must be large enough to be easily read and sufficiently prominent to be noticed — even by the least sophisticated debtor. [Baker v. G.C. Services Corp., 677 F.2d 775, 778 (9th Cir.1982)]. Furthermore, to be effective, the notice must not be overshadowed or contradicted by

other messages or notices appearing in the initial communication from the collection agency. E.g., Thomas v. National Business Assistants, Inc., No. N-82-469 (D.Conn.1984) ("inconspicuous and grossly overshadowed" notice did "not properly notify recipients of their validation of debt rights"); Ost v. Collection Bureau, Inc., 493 F.Supp. 701, 703 (D.N.D.1980) (communication must not be designed to "evade the spirit of the notice statute, and mislead the debtor into disregarding the notice").

Swanson, 869 F.2d at 1225.

Furthermore, "f the debt collector wishes to place the validation of debt language on the back of its `initial communication,' then some clear reference to that language must appear on the face of that document." Ost, 493 F.Supp. at 703; Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 177 (W.D.N.Y.1988) (relying in part on Gambardella v. G. Fox & Co., 716 F.2d 104, 111 (2d Cir.1983)).

Despite plaintiff's contrary contention, the defendant's initial communication clearly indicates to the reader that the reverse side of the first collection notice contains important information warranting attention. Nor is the Court persuaded that the other language on the front of the collection notice or the first paragraph on the reverse side, when examined through the eyes of the least sophisticated consumer, obscured either the notice to see the reverse side of the document or the debt validation notice itself. See Colmon, at 694-95 (involving a collection notice nearly identical to the one at bar).

The Court is troubled, however, by: 1) the defendant's statement in the initial collection notice that "IF THERE IS A VALID REASON [YOU HAVE NOT PAID], PHONE US AT (414) 784-6565 TODAY"; and 2) the fact that eight days after the initial communication the defendant sent another collection notice to plaintiff, lacking any debt validation notice or reference to the notice initially given, and stating, inter alia, "MAKE PAYMENT IN FULL TODAY OR PHONE (414) 784-6565." Plf. Exh. B. The Colmon court was presented with almost the same dilemma and rejected the contention that these facts contradict and obscure the debt validation notice. It so held focusing on both the fact that no harm was threatened if payment was not made prior to the expiration of the thirty-day validation period, see Swanson, 869 F.2d at 1225-26, and the lack of any statutory requirement that collection efforts cease during the thirty-day validation period. Colmon, at 695-96. Finally, it drew a distinction between "justification for a delay in payment and a dispute as to the validity of the debt", id. at 695, noting that the language in both notices relating to phone calls merely "stated plaintiff's option, if delay in payment is justified, to arrange payment terms." Id.

Colmon is distinguishable from this case. First, and most importantly, because the second notice sent to the debtor stated, inter alia, "WITHIN 72 HOURS, PAY THE BALANCE IN FULL OR CALL US AT (201) 981-9600 TO ARRANGE TERMS." Id. at 695. And second, because the time period between the mailing of the first (October 13, 1988) and second (November 3, 1988) notices was three weeks, as opposed to eight days in this case. The first distinction is of significance because the second notice in this case does not make any reference to calling to "arrange terms". The second distinction is of importance because the time period between the giving of the two notices is greater, thereby lessening the possibility that the second notice would deter a consumer considering disputing the validity of a debt from doing so or doing so by improper telephonic means.

To the extent that Colmon is not distinguishable, on the facts of this case this Court rejects its analysis for the following reasons. First, the Court must remain cognizant that the defendant's compliance with the FDCPA must be viewed from the perspective of the least sophisticated consumer. When viewed from such a perspective, the Court finds confusing, notwithstanding the clear reference to the reverse side of the document and the appropriate debt validation language itself, defendant's

statement to call "today" if there is valid reason for non-payment.5 Such a statement fundamentally contradicts and detracts from the requirement that, to dispute the validity of the debt or any portion thereof, the consumer must do so in writing. See 15 U.S.C. § 1692g(b) (discussing the writing requirement). A consumer calling the defendant would not be exercising her validation rights and would not be entitled to the statutory cessation of debt collection activities (with respect to that portion of the debt that is disputed). See id. (requiring that debt collection activities cease from the time the debt collector receives written notification that the consumer disputes the debt until the time that the debt collector obtains verification of the debt or a copy of a judgment or the name and address of the original creditor and mails the same to the consumer).

Additionally, in this case, the second notice does nothing but add to that confusion. Just more than one week after mailing the initial collection notice to the plaintiff, the defendant sent a collection notice stating that plaintiff should pay in full "today" or phone, that contained no restatement of the prior debt validation language or any reference to the important information on the back of the first collection notice. Again, the reference to telephoning serves to negate the message that plaintiff must exercise her rights to dispute the debt in writing. Moreover, that failure is further aggravated by the absence of any reference to the debt validation notice. Though Congress mandated neither that debt collection efforts cease during the thirty-day validation period nor that every collection notice sent to the plaintiff repeat the debt validation notice, see 15 U.S.C. § 1692g(a) (providing only that such written notice must be given in the collector's initial communication with the debtor or within five days thereafter), this does not excuse the failure of a debt collector to convey effectively such notice to a consumer.6 Cf. Swanson, 869 F.2d at 1225-26; Butler v. Int'l Collection Serv., Inc., Civ. No. N-88-302 (D.Conn. June 6, 1989); Riveria, 682 F.Supp. at 176-77; Ost, 493 F.Supp. at 702-704. The Court holds that because the least sophisticated consumer would be confused by the defendant's attempt to comply with § 1692g, the defendant failed to effectively convey the debt validation notice to the plaintiff, and the plaintiff is entitled to summary judgment on this claim.

3) Harassing or Abusive Conduct

Plaintiff also seeks summary judgment on her claim that by means of its second collection notice the defendant "engaged in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Specifically, plaintiff asserts that the second notice's statement, giving her "THIS OPPORTUNITY TO SETTLE THIS MATTER IN A FRIENDLY MANNER", coming on the heels of the alleged threats contained in defendant's first notice, oppressively implied that the defendant would resort to unfriendly methods including violence, etc. if friendly methods did not succeed. Plf. Exh. B.

On the basis of the undisputed factual record, the Court holds that plaintiff is not entitled, as a matter of law, to summary judgment on this claim. Rather, the defendant is entitled to such judgment and this claim is, accordingly, dismissed. The Court does not deem the second notice, when read in its entirety, to be the type of oppressive or abusive conduct proscribed by § 1692d. Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or.1981) (finding abusive letter sent to consumer implying that she

removed her head when receiving letters from debt collector, that she ignored her mail and bills, and that she lacked common sense to handle properly her financial matters).

4) Threats of Unlawful Conduct

Plaintiff also contends that the defendant threatened unlawful conduct in violation of 1692e(5) by stating in its second collection notice that "All information obtained in our investigation WILL be used to collect this debt." Plf.Exh. B. With the exception of the words "in our investigation", the quoted sentence tracks the previously discussed statutory requirement of 15 U.S.C. § 1692e(11). Plaintiff also contends that the two references to the term "investigation" in the second collection notice threaten unlawful conduct specifically prohibited by § 1692c(b), which forbids debt collectors, except as provided in § 1692b with respect to location information, from communicating with third parties concerning the collection of a debt without the consumer's consent or a court's permission.

For the reasons set forth by Judge Dorsey in Colmon, this Court disagrees and dismisses this claim. As noted in Colmon, Swanson is distinguishable, the statement at issue "is simply a reiteration of the § 1692e(11) notice in the follow-up collection letter", and the words "in our investigation" do not threaten improper third-party contact...." Colmon, at 696.

5) Lack of Authority to Collect

Plaintiff's next contention is that the defendant's alleged lack of authority to collect on the account ran afoul of 15 U.S.C. § 1692e(9)'s prohibition against sending any written communication creating a false impression as to its authorization.7

The collection agreement between Chase and the defendant's parent corporation, Payco American Corporation, provides, in pertinent part, that "[the parent] shall not transfer collection activities on an Account from one of its offices to another without [Chase's] prior written approval." 1988 Agreement at ¶ 3. Plaintiff has also offered evidence of a May 18, 1988 letter from Chase to the parent corporation which specifically rejects the parent's proposal for contractual permission to transfer a collection account "from one Payco office to another" without Chases's prior approval. Without explicitly conceding or denying the effect of these statements, the defendant has submitted the affidavit from Chase's Second Vice President indicating that "[Chase] understands that [defendant] is a wholly-owned subsidiary of Payco American Corporation and pursuant to the agreement between Payco American Corporation and [defendant], [the latter] was authorized to collect debts on behalf of [Chase], [including the debt at issue here]." DeGeorge Aff. at ¶ 5.

Whether this statement creates a genuine dispute of material fact need not be resolved, because the plaintiff is not entitled to summary judgment on this claim as a matter of law. As stated under very similar circumstances in Colmon:

[P]laintiff offers no case law in support of her theory that lack of express authority in the contract would be in violation of § 1692e(9). That the collection letters and other communications were undertaken by a wholly-owned subsidiary of the entity which contracted with the creditor rather than the parent company is an overly technical argument which would not create a `false impression' as to authorization in the mind of the least sophisticated consumer. Nor would it further the purposes of the FDCPA [to find such a violation]. The collection letters all clearly identified defendant as a collection agency. This is not the case where a debt collector attempts

to clothe collection efforts with governmental or other official authority.

Colmon, at 698-99. Since the defendant is entitled to judgment as a matter of law, this claim is dismissed.

6) Licensing

Plaintiff's final claim (or, more appropriately, set of claims) revolves around the allegation that the defendant engaged in collection activity in the State of Connecticut without a license. Though once again plaintiff offers no evidence in support of this allegation, the Court deems it admitted because the defendant implicitly concedes its truth. Connecticut law prohibits collection agencies, like the defendant, from engaging in debt collection activities within the state unless they obtain a license from the state banking commissioner. Conn.Gen.Stat. § 42-127a(a), § 42-131(o). As noted in Wagner v. American National Educ. Corp., Civ. No. N-81-541 (PCD) (D.Conn. Dec. 30, 1983), however, no private right of action exists to enforce the Connecticut Consumer Collection Agency Act. Rather, enforcement of its provisions is left in the hands of the state banking commissioner or the state's attorney. Wagner, slip op. at 7.

Plaintiff concedes as much, but argues that the defendant's noncompliance with state law violates the FDCPA. More precisely, she asserts that defendant's unlicensed collection activity violated the FDCPA's provisions against: 1) threatening to take action that cannot legally be taken, 15 U.S.C. § 1692e(5); 2) misrepresenting one's status as an authorized collection agency, 15 U.S.C. § 1692e(9); 3) engaging in the unfair practice of acting as a collection agency in violation of public policy, 15 U.S.C. § 1692f; 4) making the false representation that the debt collector is vouched for or affiliated with a state, 15 U.S.C. § 1692e(1); 5) making false representation concerning the legal status of a debt or any service or compensation that may be lawfully received in collection thereof by the debt collector, 15 U.S.C. § 1692e(2); 6) using false representations or deceptive means to attempt to collect a debt, 15 U.S.C. § 1692e(10); 7) using unfair means to collect a debt, by attempting to collect an amount not permitted by law, 15 U.S.C. § 1692f(1); and Cool making false representations in connection with the collection of a debt, 15 U.S.C. § 1692e.

The only reference to licensing in the defendant's collection notices is the statement in the first notice sent to the plaintiff that "THIS COLLECTION AGENCY IS LICENSED BY THE OFFICE OF THE COMMISSIONER OF BANKING, ... MADISON, WI[SCONSIN]...." Plf.Exh. A. Plaintiff's second notice omits that sentence but does indicate, like the first notice, that the defendant is a collection agency.

Plaintiff argues that the defendant, by demanding payment on two occasions on the outstanding debt and stating that it would use all means to enforce collection, unlawfully threatened action that legally could not be taken in light of its failure to obtain the proper licensure from Connecticut state authorities. To buttress her argument that whether an act can legally be taken is to be determined by applicable state law, plaintiff points to non-authoritative commentary issued by the FTC stating, by way of example:

If state law forbids a debt collector from suing in his own name [or from doing so without first obtaining a formal assignment and that has not been done], the debt collector may not represent that he will sue in that state.

53 Fed.Reg. 50106, col. 2 (1988); West v. Costen, 558 F.Supp. 564, 581-82 (W.D.Va.1983) (applying state law to determine whether a debt collector has violated § 1692f(1)'s prohibition against the collection of any amount not "permitted by law"). Here, state law forbids a debt collector from acting as a collection agency without first being licensed by the proper state authorities. Hence, plaintiff argues that in demanding payment and stating that it intended to use all means at its disposal to collect and to enforce the debt (in other words, threatening to collect the debt), the defendant violated the FDCPA.

Defendant fails to respond to this argument or offer any authority contradicting

that offered by the plaintiff. Instead, it incorrectly argues that plaintiff is attempting to evade Wagner's scope in order to sue under the Connecticut Consumer Agency Act. This argument is not persuasive. Accordingly, the Court finds that the defendant violated § 1692e(5) of the FDCPA by threatening to take action that legally could not be taken.8

Plaintiff's second "licensing" claim is that the defendant "falsely represented its authorization to send collection communications" and in doing so violated the FDCPA's prohibition against the use of written communications falsely represented to be authorized or approved by state officials. See 15 U.S.C. § 1692e(9). There is no merit to this claim because defendant's collection notices contain no reference, either explicit or implicit, regarding authorization from Connecticut authorities. Therefore, no false representation concerning such authorization has been established. This claim is dismissed because the defendant is entitled to summary judgment as a matter of law.

The next licensing claim raised by plaintiff is defendant's alleged false representation that it was vouched for or affiliated with the state of Connecticut. See 15 U.S.C. § 1692e(1). Plaintiff's contention here is that defendant falsely implied that it is licensed to act as a collection agency in Connecticut because that is required by the law to engage in consumer collection in this State. The Court disagrees because it does not follow from noncompliance with the licensure requirement that defendant made a false representation. The defendant made no representation that it was licensed in Connecticut. In fact, it stated only that it was licensed in Wisconsin. In the absence of a false representation, this claim must fail.9 The same is true for the claim that the defendant falsely represented its status as a licensed collection agency to attempt to collect plaintiff's debt. Accordingly, both claims are dismissed.

Plaintiff also argues that §§ 1692e, in general, and 1692e(10), in particular, were violated by defendant's deceptive attempt to engage in collection activity in direct contravention of state law. The defendant has made no effort to address this claim. In the absence of any such opposition other than that previously noted, the plaintiff is entitled to summary judgment as a matter of law on this claim because the Court finds deceptive the defendant's attempt to collect a debt when prohibited from doing so by Connecticut law.

Finally, plaintiff claims that defendant violated § 1692f(1)'s prohibition against the collection of debt amounts not expressly authorized by the agreement creating the debt or otherwise permitted by law. Congress plainly stated that § 1692f is violated by:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

15 U.S.C. § 1692f(1). Here, plaintiff misapplies this portion of the FDCPA by reducing this statutory prohibition to the statement that the defendant may not collect any amount unless permitted by law. The focus of the statutory provision, however, is on the amount of the debt to be collected, rather than the collector's authorization to

collect any debt, whatever its amount. The case law supports this interpretation. See, e.g., West, 558 F.Supp. at 581-82 (interpreting § 1692f(1)). For this reason, this claim fails as a matter of law and is dismissed.

C) Defendant's Summary Judgment Motion

The defendant also cross-moved for summary judgment. Since, however, the Court has already addressed all the claims upon which it seeks summary judgment, the Court will not discuss those claims again now.

Conclusion

In accordance with this ruling, the plaintiff is granted summary judgment on her validation notice claim, and on those licensing claims alleging a violation of § 1692e(5), § 1692f, § 1692e, and § 1692e(10). Plaintiff's is not entitled to summary judgment as a matter of law on her false statement (re: employment investigation and use of the term "professional") claim, her § 1692e(5) threat to sue (intent) claim, her § 1692e(11) claim, her § 1692d claim, her § 1692e(5) threat to take unlawful conduct (re: "in our investigation") claim, her lack of authority claim, and on her licensing claims asserting violations of § 1692e(9), § 1692e(1), § 1692e(2), and § 1692f(1). Those claims are dismissed. Finally, plaintiff's motion for summary judgment on her § 1692e(10) (all approved means) claim is denied because and genuine and material factual disputes. In accordance with the above, defendant's motion is also granted in part and denied in part.

Both parties are hereby directed to file simultaneously briefs on the issue of damages for those violations found thus far by July 2, 1990. Each side will then be entitled to file one, and only one, reply brief by July 13, 1990. The Clerk is directed to issue the Court's standard Pretrial Order forthwith.

SO ORDERED.

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Notes:

1. For the record, the Court notes that plaintiff's presentation of the claims upon which she seeks summary judgment is often difficult to decipher.

2. Plaintiff also contends that defendant's statement that it is a "professional" collection agency on the back of the first collection notice is both false and intimidating. For the reasons stated in Colmon, at 693, this Court disagrees. This Court finds that the reference to "professional" is not intimidating or false and merely notifies the debtor that the defendant is in the business of debt collection.

3. Whether this portion of the letter violated section 1692e(5)'s prohibition concerning a "threat to take any action that cannot legally be taken" will be considered below.

4. In its entirety, 15 U.S.C. § 1692g(a) provides:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing — (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

5. While it might be argued that the "valid reason" language in the first notice, refers to a valid reason for failure to pay timely one's obligation, as apparently assumed by the Colmon court, in view of the remedial nature of the statute this Court finds no basis for finding that the least sophisticated consumer would make such an assumption.

6. In this instance, for example, if the defendant had stated in its first notice to call if plaintiff had a reason (apart from any underlying reason as to the validity of the debt) for failing to pay her debt in timely fashion, and placed in its second notice some reference to the important information contained on the back of its first collection notice, liability might not attach.

7. Specifically, the statute provides that the FDCPA is violated by: "The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval." 15 U.S.C. § 1692e(9).

8. For the similar reasons, the Court holds that the defendant's unlicensed actions as a collection agency in the state of Connecticut constituted an "unfair or unconscionable" method of debt collection in violation of § 1692f. By failing to seek the proper license from the state banking commissioner, for example, the defendant deprived the plaintiff of her right as a consumer debtor residing within the state to have the defendant's qualifications as a collection agency reviewed by state authorities. See Conn.Gen.Stat. § 42-127a(b). Accordingly, the plaintiff is also entitled to summary judgment on this claim.

9. For similar reasons, plaintiff's § 1692e(2) claim is rejected. There is no evidence that defendant falsely represented either the legal status of the debt or the amount of services rendered or compensation it might be entitled to for collection of the debt. That defendant engaged in unlicensed collection activity is not, on the basis of the facts of this case, relevant to proving this claim.

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