United States District Court, E.D. Pennsylvania
Jacqueline Smith brings this civil action against Select
Portfolio Servicing Inc. ("SPS") pursuant to the
Fair Debt Collection Practices Act ("FDCPA"), based
on allegations that SPS Jailed to comply with that statute in
attempting to collect a debt from her. See 15 U.S.C.
§ 1692(e). Smith seeks leave to proceed in forma
pauperis. The Court will grant Smith leave to proceed
in forma pauperis and dismiss the Complaint.
Complaint indicates that Smith took out a mortgage on her
home in 2005. The instant civil action is based on ten (10)
letters that SPS sent to Smith between June 15, 2017 and May
15, 2018, in an effort to collect her mortgage debt on behalf
of another entity. Smith acknowledges that all of the
letters, which she describes as "subsequent
communications" stated "This is an attempt to
collect a debt. All information obtained will be used for
that purpose." Nevertheless, she alleges that each
letter violated the FDCPA by failing to inform her that the
"communication was from a debt collector." That is
the only basis for Smith's Complaint. She seeks statutory
damages in the amount of $10, 000.
STANDARD OF REVIEW
is granted leave to proceed in forma pauperis
because it appears that she is incapable of paying the fees
to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint
if it fails to state a claim. To survive dismissal a
complaint must contain "sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). "Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id. As Smith is proceeding pro se, the
Court construes their allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
FDCPA prohibits debt collectors from making false, deceptive,
or misleading representations to collect a debt. See
15 U.S.C. § 1692e. The only provision relevant here is
§ 1692e(l 1), which essentially requires debt collectors
to provide a "mini-Miranda'" warning
to consumers. Simon v. FlA CardServs., N.A., 732
F.3d 259, 264 (3d Cir. 2013). Specifically, the statute
provides that the following is considered a false, deceptive,
or misleading means of collecting a debt:
The failure to disclose in the initial written communication
with the consumer... that the debt collector is attempting to
collect a debt and that any information obtained will be used
for that purpose, and the failure to disclose in subsequent
communications that the communication is from a debt
context of FDCPA claims, "communications from lenders to
debtors [are analyzed]
the perspective of the 'least sophisticated
debtor.'" Lesher v. Law Offices Of Mitchell N.
"v. Kay, PC, 650 F.3d 993, 997 (3d Cir.
2011). The purpose of that standard is "to ensure that
the FDCPA protects all consumers, the gullible as well as the
shrewd." Wilson v. Quadramed Corp., 225 F.3d
350, 354 (3d Cir. 2000) (quoting United States v.
Nat'l Fin. Servs., 98 F.3d 131, 136 (4th Cir.
1996)). However, "although this standard protects naive
consumers, it also 'prevents liability for bizarre or
idiosyncratic interpretations of collection notices by
preserving a quotient of reasonableness and presuming a basic
level of understanding and willingness to read with
care.'" Wilson, 225 F.3d at 354-55 (quoting
Nat 7 Fin. Servs., 98 F.3d at 136). Courts
have also held that a debt collector is not obligated to use
"magic words" or track the language of the statute
to comply with the law. See, e.g., Dikeman v. Nat'l
Educators, Inc., 81 F.3d 949, 952 (10th Cir. 1996)
("We also take note that § 1692e(ll) does not place
the required disclosure in quotation marks or set forth any
specific required wording for the disclosure but merely
defines what the content of the required disclosure will
be."); Shanker v. Fair Collection &
Outsourcings LLC, No. CrV.A.3:09CV1759FLW, 2009
WL 1767580, at *4 (D.N.J. June 19, 2009) ("[C]ourts
faced with similar challenges have not required 'magic
words' or specific phrases to meet the strictures of
Smith alleges that each "subsequent communication"
she received from SPS violated § 1692e(l 1). Her theory
appears to be that, since the letters were subsequent
communications rather than SPS's initial communication
with her, SPS was required to explicitly state that it was a
debt collector. For Smith, the language in the letters-
-"This is an attempt to collect a debt. All information
obtained will be used for that purpose"-is allegedly
insufficient to comply with the statute.
as noted above, SPS was not necessarily required to use
specific language to comply with the law. Rather, SPS was
required to make clear from the perspective of the least
sophisticated debtor that the communications were sent by a
debt collector with the purpose of collecting a debt from
Smith. By clearly stating that each communication was sent
for the purpose of debt collection, SPS ...