United States District Court, E.D. Pennsylvania
For JOSEPH SZCZUREK, INDIVIDUALLY, AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiff: ARKADY ERIC RAYZ, LEAD ATTORNEY, KALIKHMAN & RAYZ LLC, HUNTINGDON VALLEY, PA; GERALD D. WELLS, III, CONNOLLY WELLS & GRAY, LLP, KING OF PRUSSIA, PA.
For PROFESSIONAL MANAGEMENT, INC., doing business as FINANCIAL RECOVERIES, Defendant: RICHARD J. PERR, LEAD ATTORNEY, FINEMAN KREKSTEIN & HARRIS, P.C., PHILADELPHIA, PA; JENNIFER TATUM ROOT, FINEMAN KREKSTEIN & HARRIS, PHILADELPHIA, PA.
We consider here defendant Professional Medical Management's (plaintiff incorrectly designated defendant as Professional Management, Inc.) motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff Joseph Szczurek brings an action pursuant to the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq., based on the wording of several collection letters sent to him beginning on June 17, 2014. Plaintiff also makes class action allegations.
II. Legal Standard
A party may move for judgment on the pleadings after the pleadings are closed, but " early enough" so as " not to delay trial." Fed.R.Civ.P. 12(c). We may grant judgment on the pleadings only if the moving party clearly establishes that there are no material issues of fact to resolve and the moving party is entitled to judgment as a matter of law. Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988). We decide such motions applying the same standard as we do on a motion to dismiss under Rule 12(b)(6), granting the motion only when we are certain that no relief can be granted on any set of facts. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (E.D. Pa. 1998); Constitution Bank v. DiMarco, 815 F.Supp. 154, 157 (E.D. Pa. 1993). We consider the facts presented in the pleadings and inferences drawn therefrom in the light most favorable to the nonmoving party. Jablonski, 863 F.2d at 291.
III. Factual Background
Defendant sent plaintiff a letter, dated June 17, 2014, in regard to a balance of $19.70 due on an account listed with the
defendant for collection. Complaint at ¶ 18-19.
The plaintiff complains of one sentence, the second in the first paragraph of the letter, which stated " To avoid further contact from this office regarding your past due account, please send the balance due to our office and include the top portion of this letter with your payment." Complaint at ¶ 19. Over the next month, plaintiff received four more " virtually-identical letters" from defendant with the same complained-of language. Id. at ¶ 20.
Plaintiff alleges that the language at issue, which we will refer to as " the contact sentence," " create[s] the misleading impression that the only way to stop Defendant from further contacting Plaintiff regarding his alleged past due account is for Plaintiff to pay the outstanding balance." Id. at ¶ 21. Plaintiff maintains that language given in the letter is false " because a debt collector is required to cease all communications with an alleged debtor after being requested to do so, regardless of whether a payment is made towards the alleged debt," and defendant's letter " does not accurately disclose that Defendant's attempted contacts can be stopped by a simple phone call." Id. at ¶ ¶ 22-23.
Further, plaintiff argues that the letter is " confusing to the least sophisticated debtor to the extent it states that the debtor has thirty (30) days to dispute the debt on the one hand and then in another paragraph states the debtor must pay the balance to avoid further contact." Id. at ¶ 26.
There is no factual dispute about the contact sentence used in defendant's collection letters. The parties dispute only whether the contact sentence violates the FDCPA. Whether language in a collection letter contradicts or overshadows a validation notice constitutes a pure question of law. See Wilson v. Quadramed Corp., 225 F.3d 350, 353 & n.2 (3d Cir. 2000) (agreeing with the majority of Courts of Appeal that whether language in a collection letter contradicts or overshadows the statutorily required validation notice is a question of law). Since there are no material disputes of fact to resolve, judgment on the pleadings is appropriate in this case if the defendant can show that it is entitled to judgment in its favor as a matter of law. Jablonski, 863 F.2d at 290.
Plaintiff stresses that defendant allegedly violated the FDCPA by stating that it would continue " contacting" plaintiff, not that it would continue its " collection efforts," and that this conduct " is differentiated by the FDCPA." Pl. Resp. at 2-3. Plaintiff argues that the FDCPA distinguishes these two forms of conduct based on his reading of 15 U.S.C. § 1692g(b), which states in part " Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." Plaintiff further argues, based on 15 U.S.C. § 1692c, that the " use of [the contact sentence] language is unfair," because it conceals a consumer's rights under the FDCPA not to be contacted further by a debt collector upon request. Pl. Resp. at 8-9.
Defendant challenges plaintiff's asserted distinction between " action" or " collection activity" and " contact," arguing that such a " premise fails unless a least sophisticated consumer would understand the terms 'action' and 'collection activity' to exclude 'contacting' the consumer." Def. Reply at 2. Defendant argues that its letter does not imply that the only way to end collection efforts is to pay, or that such contact
would continue until payment was made. Id. at 6 (quoting ...