Osborn v. Ekpsz, LLC
2011 U.S. Dist. LEXIS 109385
S.D. Tex.2011Background
- FDCPA action against Ekpsz, LLC arising from a collection letter
- Plaintiffs sought to amend to add FDCPA claims under §§ 1692g(a)(4)-(a)(5), 1692e(9), 1692e(10), 1692f, and class allegations
- Defendant moved for Rule 12(c) judgment on the pleadings; plaintiffs sought leave to amend
- Court granted in part and denied in part the leave-to-amend request, and granted/denied the 12(c) motion accordingly
- Second amended complaint dropped state-law claims and some FDCPA claims, retained others including §1692g(a)(4)-(a)(5) and class allegations for that claim
- A status conference was set to resolve remaining claims
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1692g(a)(4)-(a)(5) writing requirement | Osborns’ notice failed to require writing for requests | Oral requests were allowed, expanding rights | Plaintiffs states a plausible claim for incomplete notice |
| 1692g(b) overshadowing/contradiction | Letter’s other language overshadowed the validation notice | No overshadowing; letter not confusing under least-sophisticated standard | §1692g(b) claim dismissed |
| 1692e(9) and 1692e(10) misrepresentation | Letter misleads about court authorization and misstates judgment | Letter does not imply court authorization; misrepresentation not shown | §1692e(9) dismissed; §1692e(10) claim for misrepresenting court authorization dismissed; another §1692e(10) claim about judgment against Russell dismissed |
| 1692f backstop theory | Mimicking court documents violates §1692f | No distinct conduct beyond §1692e claims | §1692f claim dismissed |
| Class allegations and fees | Leave to amend to add class allegations appropriate; fees not a condition | Prejudice and costs insufficient to deny amendment | Leave to amend granted as to class allegations for surviving §1692g claim; fee issue resolved against conditioning amendment |
Key Cases Cited
- Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078 (9th Cir. 2005) (written-notice requirement for §1692g(a)(4)-(a)(5) tied to written dispute restrictive rights)
- Peter v. GC Servs. L.P., 310 F.3d 344 (5th Cir. 2002) (overshadowing/contradiction analysis for §1692g(b))
- DeSantis v. Computer Credit, Inc., 269 F.3d 159 (2d Cir. 2001) (validations notices and §1692g standards; writing vs oral disputes)
- Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997) (overshadowing not present when a request is for phone contact rather than immediate payment)
- Durkin v. Equifax Check Servs., Inc., 406 F.3d 410 (7th Cir. 2005) (discussion of payment-encouragement vs overshadowing validation notice)