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AHMED v. I.C. SYSTEM

December 20, 2005.

JAVED AHMED, individually and on behalf of all others similarly situated, Plaintiff,
v.
I.C. SYSTEM, INC. and KEN RAPP, Defendants.



The opinion of the court was delivered by: WILLIAM STANDISH, Senior District Judge

MEMORANDUM

I

In this civil action, plaintiff, Javed Ahmed ("Ahmed"), asserts claims against defendant I.C. System, Inc. ("I.C. System") for (a) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o (Count I), (b) violation of the Pennsylvania Fair Credit Extension Uniformity Act ("PaFCEUA"), 73 P.S. §§ 2270.1-2270.6 (Count II), (c) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("PaUTPCPL"), 73 P.S. § 201-1 et seq. (Count III), (d) unjust enrichment (Count IV), (e) civil conspiracy (Count V) and (f) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 (Count VI), and a claim against defendant Ken Rapp ("Rapp") for violation of RICO (Count VI).*fn1 Presently before the Court is defendants' motion to dismiss Ahmed's claims pursuant to Fed.R.Civ.P. 12 (b) (6). For the reasons set forth below, the motion will be granted.

  II

  In summary, Ahmed's complaint alleges the following facts:

  On July 29, 2003, Ahmed was injured in an automobile accident. At the time, Ahmed was insured under an automobile insurance policy issued by Progressive Insurance which provided first party medical benefits in the amount of $5,000.00.

  Ravi Kant, M.D. ("Dr. Kant") is a licensed medical practitioner. Following the July 29, 2003 automobile accident, Ahmed received medical treatment from Dr. Kant.*fn2 After Ahmed's first party medical benefits had been exhausted, Dr. Kant billed Ahmed for medical services rendered in the amount of $350.00. Ahmed does not have health insurance to pay for the medical services provided by Dr. Kant. However, if Ahmed had health insurance or if Ahmed was covered by some governmental health insurance program (such as Medicare or Medicaid), Dr. Kant would accept an amount significantly less than $350.00 for the medical services rendered to Ahmed following the automobile accident. I.C. System is a debt collection agency. Rapp is the President and Chief Executive Officer of I.C. System. Following Ahmed's failure to pay Dr. Kant for the medical services rendered in connection with the injuries sustained by Ahmed in the July 29, 2003 automobile accident, Dr. Kant retained I.C. System to collect the alleged debt. On July 20, 2004, a representative of I.C. System sent the following letter to Ahmed's counsel:
Claim of: Ravi Kant MD Against: Ahmed Javed (sic)
Dear Jeff Suher:
You have been identified as the lawyer apparently representing Ahmed Javed (sic) in the above matter.
Our client, Ravi Kant MD has referred this delinquent account to us for collection efforts. You are hereby notified that our collection experience with this account has been submitted to credit reporting agencies.
Please contact me to discuss resolution of this matter. Unless you respond to this request for confirmation, I will assume you do not represent Ahmed Javed (sic) who will be contacted directly.
We are a debt collector attempting to collect a debt and any information obtained will be used for that purpose.
Sincerely,
B. Miller Consumer Affairs
(Complaint, Exh. A).*fn3 The operator of the automobile which struck Ahmed on July 29, 2003 was insured under an automobile insurance policy issued by Pennsylvania National Mutual, and Ahmed has been seeking recovery from the tortfeasor's insurer. Because Dr. Kant's charge for the medical services provided to Ahmed following the automobile accident is payable under the tortfeasor's automobile insurance policy or Ahmed's coverage for underinsured motorists' benefits which have not been exhausted, the cost containment provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law ("PaMVFRL"), 75 Pa. C.S. § 1701 et seq., are applicable. As a result, Dr. Kant is not entitled to $350.00 for the medical services provided to Ahmed.*fn4

  Dr. Kant's charge for the medical services provided to Ahmed following the July 29, 2003 automobile accident exceed the reasonable value of such services because the amount is not Dr. Kant's usual and customary charge, i.e., the amount billed to Blue Cross and HMOs. Only a small percentage of Dr. Kant's patients, i.e., patients who are uninsured, are required to pay his full, undiscounted charges. Dr. Kant has a policy and practice of attempting to collect outstanding charges for medical services through collection agencies. Pursuant to that policy and practice, Ahmed has been "hounded" by I.C. System. Defendants' attempt to collect $350.00 for the medical services provided to Ahmed by Dr. Kant violates, inter alia, the PaMVFRL and the common law of Pennsylvania. In addition, defendants acted in a deceptive, misleading and unfair manner by reporting false information regarding Ahmed to credit bureaus.

  III

  A motion to dismiss for failure to state a claim tests the sufficiency of a complaint. Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999). In deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true the facts pleaded in the complaint and any reasonable inferences derived from those facts. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In addition, the court is to construe the complaint in the light most favorable to the plaintiff. Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). However, the court is not required to accept as true legal conclusions or unwarranted factual inferences. Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). IV

  In response to defendants' motion to dismiss his complaint for failure to state claims upon which relief may be granted, Ahmed agrees to the dismissal of Counts II through VI of the complaint, indicating that he desires to proceed solely against I.C. System on Count I which alleges violations of the FDCPA. (Brief in Opp., p. 3). Thus, defendants' motion to dismiss Counts II through VI of Ahmed's complaint, which includes the only claim asserted against Rapp, will be granted.

  Turning to Ahmed's sole remaining claim, the FDCPA provides a remedy for consumers who have been subjected to abusive, deceptive or unfair debt collection practices by debt collectors. See Pollice v. National Tax Funding, L.P., 225 F.3d 379, 400 (3d Cir. 2000), citing, Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir. 1987). The findings of Congress concerning debt collection practices and the purpose of the FDCPA are set forth in 15 U.S.C. § 1692 as follows:
§ 1692. Congressional findings and declaration of purpose
(a) Abusive practices
There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
* * * (e) Purposes
It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
  Ahmed's FDCPA claims against I.C. System arise out of the July 20, 2004 letter sent by I.C. System to Ahmed's attorney. Ahmed alleges that I.C. System violated the FDCPA by (1) making false, deceptive and misleading representations in connection with the collection of a debt in violation of 15 U.S.C. § 1692e; (2) representing falsely the character, amount or legal status of the debt owed to Dr. Kant in violation of 15 U.S.C. § 1692e(2) (A); and (3) communicating false credit information to credit bureaus in violation of 15 U.S.C. § 1692e(8). (Complaint, ¶ 62).

  The term "communication" is defined in the FDCPA as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2). I.C. System does not dispute that its July 20, 2004 letter to Ahmed's attorney conveyed information regarding a debt. However, I.C. System contends that a letter sent to a debtor's attorney "is not a communication to a debtor giving rise to an FDCPA claim." (Brief in Supp., p. 4). In support of the contention that its July 20, 2004 letter was not a communication that is actionable under the FDCPA, I.C. System relies heavily on the decision of the district court in Tromba v. M.R.S. Assocs., Inc., 323 F.Supp.2d 424 (E.D.N.Y. 2004). In Tromba, a debtor sued a debt collector for alleged violations of the FDCPA based on documents relating to the collection of an outstanding debt which were sent by the debt collector to the debtor's attorney. The debt collector moved for judgment on the pleadings, arguing that the communication at issue was not actionable under the FDCPA because it was directed solely to the debtor's attorney. The district court granted the debt collector's motion, holding that the debtor failed to state a claim under the FDCPA because the communication was directed solely to her attorney and no threat was made regarding contact with the debtor herself. Ahmed asserts that I.C. System's reliance on Tromba is misplaced because, unlike the communication at issue in Tromba, the July 20, 2004 letter from I.C. System to his attorney contained language threatening direct contact with Ahmed.*fn5

  After consideration, the Court is not persuaded that the language contained in I.C. System's July 20, 2004 letter regarding direct contact with Ahmed in the event counsel failed to respond to the letter makes the communication actionable under the FDCPA, despite the holding of the district court in Tromba. The FDCPA specifically provides that a debt collector may communicate with a consumer in connection with the collection of a debt if the consumer's attorney fails to respond within a reasonable period of time to a communication from the debt collector. See 15 U.S.C. § 1692c(a) (2). Thus, in the Court's view, the ...


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