MEMORANDUM AND ORDER
Plаintiffs David Ehrich (“Ehrich”) and Camille Weiss (“Weiss”) (collectively “plaintiffs”) bring this putative class action against defendant I.C. System, Inc. (“defendant”), alleging that defendant’s debt collection letter violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Defendant moves for summary judgment pursuant to Fed. R.Civ.P. 56. For the reasons set forth below, defendant’s motion for summary judgment is denied, and it is determined that, as a matter of law, defendant’s debt collection letter violated the FDCPA.
Background
(1)
The material facts are not in dispute. On or about April 21, 2008 and November 26, 2008, plaintiffs received identical debt collection letters from defendant. Plaintiffs do not dispute the validity of the debt sought to be collected by defendant nor do they contend that the main text of the collection letter fails to comply with the FDCPA. Rather, at issue is a single Spanish sentence contained in the “Notice” section towards the bottom of the letter. This section states:
Unless you notify this office within 30 days after rеceiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor. Si ud tiene alguna pregunta acerca de esta cuenta llame800/279-9^20 y referir al numero de su cuenta. 1 Telephone calls to or from our General Office are randomly monitored by supervisory personnel for business reasons not directly related to your account. Calls may be recorded for quality assurance.
Def.’s Ex. A. (emphasis added)
Plaintiffs claim that defendant’s debt collection letter violated their right to notice under the FDCPA. Pl.’s Compl. at ¶22. Specifically, plaintiffs, who speak English, 2 argue that the phone number contained in the Spanish sentence overshadowed the English notice because it encouraged Spanish-speaking consumers to call, thereby waiving their rights to notice.
On or about February 20, 2009, plaintiffs commenced the present action against defendant, seeking class certification, recovery of statutory damages and the costs of this action.
Discussion
(1)
The FDCPA
Congress enacted the FDCPA in 1977 to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). Under the FDCPA, a debt collection letter must include a written validation notice, containing information such as: the amount of the debt; the name of the creditor; and a statement that the consumer has 30 days to dispute the debt and to request debt verification. 15 U.S.C. § 1692g(a).
3
The omission of any of this information constitutes a violation of the FDCPA.
DeSantis v. Computer Credit, Inc.,
In evaluating claimed FDCPA violations, courts apply an objective standard, “measured by how the ‘least sophisticated consumer’ would interpret the notice received from the debt collector.”
Russell,
The least sophisticated consumer standard may be applied as a matter of law and thus is applicable in reviewing motions for summary judgment.
Id.
at 1318-19. Finally, because the FDCPA is a strict liability statute, a consumer need not show intentional conduct by the debt сollector to be entitled to damages.
Russell,
(2)
Standing
Defendant does not argue that plaintiffs lack standing, but the issue must be addressed as a threshold matter.
See Robey v. Shapiro, Marianos & Cejda, L.L.C.,
Yet, plaintiffs do in fact have standing bеcause the FDCPA broadens the traditional “injury in fact” analysis by expanding the range and scope of injuries that create constitutional standing.
6
Robey,
Indeed, the FDCPA is designed to protect consumers from the unscrupulous behavior of debt collectors, with the focus on a debt collector’s misconduct, and nоt on whether a plaintiff can demonstrate actual damages.
Id.
at 307-08 (holding that because there was debtor misconduct involving unlawful fees, plaintiff suffered an injury even though he did not actually pay any of these unlawful fees);
see also Keele v. Wexler,
Granting standing to plaintiffs in this particular case also facilitates an important goal of the FDCPA. Notably, the FDCPA “enlists the efforts of sophisticated consumers ... as ‘private attorney generals’ to aid their less sophisticated counterparts, who are unlikely to bring suit.” Id. As such, plaintiffs have standing.
(3)
Plaintiffs’ claims under the FDCPA a. § 1692g
Under § 1692g of the FDCPA, “any ... communication ... may not overshadow ... the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” A communication is overshadowing when “it conveys ... information in a confusing or contradictory fashion so as to cloud the required message with uncеrtainty,”
DeSantis,
Before addressing whether the Spanish sentence is actually overshadowing, it is first necessary to determine whether Spanish-speaking consumers fall into the objective category of the least sophisticated consumer and are thus entitled to FDCPA protection. Defendant argues that the protection provided under the FDCPA does not cover consumers who understand Spanish better than English because they do not represent the objective consumer. Defendant points to the fact that the FDCPA’s protection does not extend to every possible interpretation of a debt collection letter, and therefore, a
However, as is indicated by the high percentage of Spanish speakers in the United States and New York, Spanish speakers cannot be characterized as a non-mainstream population. According to a census conducted by the United States Census Bureau in 2008, 12.2% of Americans and 14.2% of New York residents speak Spanish in their homes.
See
U.S. Census Bureau, http://www.census.gov (last visited Jan. 19, 2010). Indeed, defendant’s inclusion of the Spanish sentence indicates an awareness that a high number of consumers are non-English speakers in need of a Spanish translation. While “the FDCPA doesn’t extend to every bizarre or idiosyncratic interpretation” of a debt collection letter, a Sрanish-speaking consumer’s interpretation would not qualify as such.
Schweizer,
However, the question still remains whether the inclusion of the Spanish sentence containing a phone number actually overshadowed the notice that was properly provided; specifically, did the sentence “make the least sophisticated consumer uncertain as to her rights[?]”
Russell,
Although a phone number does not violate the FDCPA when it merely supplemеnts proper notice, courts have distinguished between a phone number “that ... simply encourages the debtor to communicate with the debt collection agency” and one that “threaten[s] or encourage[s] the ... debtor to waive his statutory right to challenge the validity of the debt.”
Terran v. Kaplan,
If there are any questions regarding this account ... please contact [the creditor] directly at [telephone # ]. Should you wish to dispute this account, please refer to thе notice on the reverse side of this letter.
The
Shapiro
court held that the inclusion of a phone number did not overshadow the notice because “there [was] no suggestion as to which course the plaintiff should follow,” and the consumer was not left uncertain as to his rights.
Id.
at 333-34. Similarly, in
Lemer,
the collection letter stated, ‘You may either pay the balance in full or contact ... [telephone # ] and work out an arrangement for payment.” Ler
ner,
Additionally, courts have also held that a debt collection letter may include “a convenience,” something (like a phone number) that subtly encourages a consumer to make a payment on a debt, as long as the notice is also plainly stated.
See, e.g., Day v. Allied Interstate, Inc.,
09-CV-0495,
However, the instant case presents a unique set of facts and is distinguishable from the cases described above. Unlike these prior cases where notice was plainly stated, the FDCPA notice here was ambiguous to Spanish-speaking consumers. Although the notice was provided in English, from the perspective of Spanish-speaking consumers, it was not plainly stated if they were unable to understand the English. Instead, the letter left thе Spanish-speaker uncertain as to his or her rights, failing to clearly state the available options. The phone number was much more than merely supplementary to the notice because notice in Spanish was essentially never provided. Quite the contrary, the inclusion of the phone number encouraged the Spanish-speaking consumer to call and potentially waive his or her rights to challenge the validity of the debt. The sentence gave Spanish-speakers the misimpression that they understood the appropriate steps to take if they had questions, when in fact, their rights were not explained to them.
Additionally, the Spanish sentence created a particular emphasis on the phone number, thereby overshadowing the rest of the letter. Cf.
Terran,
Finally, although the required notice was provided here (albeit in English), defendant’s technical compliance with the FDCPA was not sufficient to meet the statutory requirements. As described above, in passing the FDCPA, Congress sought to protect debtors from abusive debt collection practices and “intended that ... notice be
dearly
conveyed.”
Russell,
It is important to note that it remains unclear what actually occurred when a debtor called the phone number at issue here. Indeed, it may very well be that defendant treated a phone call in the same manner as a written request from a consumer for debt verificatiоn. Regardless, under the FDCPA, the debt collector must send the consumer “a written notice” containing the information described in § 1692g(a) so that no rights are waived unintentionally. Moreover, in order for the consumer to gain his or her rights to verification, the request for debt verification must be made in writing rather than over the phone. 15 U.S.C. § 1692g(b). A phone call, therefore, does not suffice to meet the requirement of written notice, regardless of what occurs when the consumer calls the phоne number. As such, the Spanish sentence violated § 1692g because it overshadowed the notice. 7
b. § 1692e
Plaintiffs also argue that the Spanish sentence violated § 1692e of the
Plaintiffs claim that by including the Spanish sentence, defendant effectively solicited a phone call without disclosing that the communication was from a debt collector, as is required under the FDCPA’s Mini-Miranda. Plaintiffs argue that absent the Spanish sentence, a Spanish-speaking consumer would have the letter translated instead of calling the listed phone number, thus receiving the required FDCPA notice. Defendants, however, argue that the Spanish statement merely provides a phone number for debtors to call with questions and would not cause a consumer to waive his or her statutory right to notice. 8
For the same reasons set forth above regarding defendant’s violation of § 1692g, defendant’s debt collеction letter also violates § 1692e. As suggested by plaintiffs, by including the Spanish sentence, defendant might deceive or mislead the least sophisticated Spanish-speaking consumer into calling the phone number, thereby potentially waiving his or her rights. As such, the debt collection letter also violates § 1692e.
Conclusion
For the reasons set forth above, the Court finds as a matter of law that defendant’s debt collection letter violated the FDCPA. As such, defendant’s motion for summary judgment is denied. The parties are directed to contact Judge Go’s chambers to conclude any remaining discovery.
SO ORDERED.
Notes
. Plaintiffs translate this as, "If you have some questions regarding your account call 800/270-9420 and refer to your account number.” PL's Compl. at ¶ 24.
. It is not clear if plaintiffs also speak Spanish. Transcript of Oral Argument at 5.
. Section 1692g(a) provides in pertinent part:
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 informatiоn 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 ... 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 ... 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. 15 U.S.C. § 1692g.
. In an action brought by an individual, the court has discretiоn to award up to $1,000 in additional damages. 15 U.S.C. § 1692k(a)(2)(A). In a class action suit, the court has discretion to award up to $500,000 or 1% of the debt collector’s net worth. 15 U.S.C. § 1692k(a)(2)(B).
. A plaintiff must also demonstrate that the injury is fairly traceable to the challenged action of defendant and that it is redressable.
Lujan,
.As the Supreme Court has explained, Congress has the power to "enact statutes creating legal rights, the invasion of which creates [constitutional] standing, even though no injury would exist without the statute.”
Linda R.S.
v.
Richard D.,
. Defendant argues that applying the doctrine of overshadowing to the Spanish sentence stretches § 1692g “beyond reason and rationality” and will “open the floodgates of litigation.” Def.’s Supplemental Mem. of Law in Supp. of Mot. for Summ. J. at 3. As an example, defendant suggests that if the Spanish sentence is determined to be overshadowing, then a phone number in a debt collection letter to an illiterate consumer would also qualify as overshadowing. Spеcifically, defendant presents the following hypothetical of an illiterate consumer:
The [illiterate] debtor would potentially see a phone number on the collection letter, and instead of having the letter (and required notifications) read to him, the debtor may call the collector without having understood the required notifications .... [T]he phone numbers invite those who do not read but understand numbers to call without receiving the required notifications. Would the FDCPA then require collectors to send audio recordings of the validation notices in case the debtor cannot read?
Id. at 4.
However, a situation involving an illiterate consumer is different from the instant case. As stated above, "courts have carefully preserved the concept of reasonableness” when determining FDCPA violations.
Clomon,
. We, of course, were not provided with a dialogue of the phone call.