ORDER DENYING DEFENDANTS’ MOTION TO DISMISS CLASS ACTION COMPLAINT [ECF No. 20]
This cause is before the Court upon Defendants’ Motion to Dismiss Class Action Complaint (“Motion”) [ECF No. 20], filed March 18, 2013. Plaintiff filed a Response and Memorandum of Law in Opposition to Defendants’ Motion to Dismiss Class Action Complaint [ECF No. 25], and Defendants filed a Reply to Plaintiffs Response [ECF No. 28]. For the reasons stated herein, I deny Defendants’ Motion.
I. Background
Plaintiff Tunde Julius lyamu is a citizen of the state of Florida residing in Indian River County, Florida. [ECF No. 1, at ¶ 3]. Defendant Clarfield, Okon, Salomone, & Pincus, P.L. (“Clarfield”) is a Florida Professional Association and law firm engaged in the business of collecting consumer debts, [Id. at ¶4], and Defendant Kenneth L. Salomone (“Salomone”) is an attorney and member of the Florida Bar. [Id. at ¶ 5], Defendants regularly use the mail and telephone in a business that focuses primarily on the collection of debts [Id. at ¶ 6] and are debt collectors as that term is defined by the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”). [Id. at ¶ 7],
Defendants sought to collect a debt from Plaintiff. [Id. at ¶ 11]. On January 16, 2012, Defendants sent Plaintiff a demand letter stating, inter alia, that Plaintiff was delinquent in his loan payments to One Main Financial, Inc. [Id. at ¶¶ 12, 13]. The letter was the Defendants’ first communication with Plaintiff regarding the debt and included a statement that is different from the statement specified in 15 U.S.C. § 1692g(a)(3). [Id. at ¶¶ 15, 17, 18]. Instead of writing, “unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector,” Defendants wrote, “[i]f the debtor fails to dispute the debt within thirty (30) days, the debt will be assumed valid by the creditor.” [Id. at ¶ 15, 18] (emphasis added).
Plaintiff filed a complaint against Defendants on December 2, 2012, alleging Defendants’ debt collection letter violated the Fair Debt Collection Practices Act. [ECF No. 1].. Plaintiff contends Defendants’ replacement of the phrase “debt collector”
Defendants filed a Motion to Dismiss on March 18, 2013, arguing Plaintiffs complaint must be dismissed because (1) Defendants’ debt collection letter was not misleading and therefore did not violate the FDCPA, (2) Plaintiff cannot raise a claim against Salomone because Plaintiff failed to pierce the corporate veil of Clarfield, and (3) Plaintiffs class action allegations are “legally insufficient” because they fail to satisfy the requirements of Southern District of Florida Local Rules 23.1(b)(2)(A) and 23.1(b)(2)(D) and Federal Rule of Civil Procedure 23(b)(2). [ECF No. 20]. As explained below, I deny the Motion to Dismiss.
II. Analysis
A. Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act “prohibits a ‘debt collector’ from using a ‘false, deceptive, or misleading representation or means in connection with the collection of any debt.’ ” Reese v. Ellis, Painter, Ratterree & Adams, LLP,
The FDCPA protects debtors from abusive debt collection practices by, inter alia, regulating the content of written communications between debt collectors and debtors. 15 U.S.C. § 1692g(a); see also 15 U.S.C. § 1692(e). The FDCPA requires debt collectors to provide written notice of certain information associated with debt collection, including, for example, “the amount of the debt” and “the name of the creditor to whom the debt is owed.” 15 U.S.C. § 1692g(a)(1)-(5). The FDCPA also states the notice shall include “a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.” 15 U.S.C. § 1692g(a)(5) (emphasis added). Although “there is no requirement in the FDCPA that a debt collector quote the statute’s language verbatim,” Orr v. Westport Recovery Corp., No. 12-CV-187,
Neither party has cited, and upon independent review, this Court has not found, any case law discussing whether replacing the phrase “debt collector” with the word “creditor” misleads the least-sophisticated consumer. A number of courts have concluded that omitting the phrase “debt collector” in a debt collection notice could
By including the term ‘by the debt collector,’ § 1692g(a)(3) expressly intended the notice to convey the specific validation limitation to the consumer. In other words, the statute intended the consumer to receive the message that the debt would be assumed valid by only the debt collector and only for collection purposes. The statutorily required validation notice is intended to convey to the consumer that failure to dispute the debt permits the debt collector to proceed for collection purposes on the temporary fiction that the debt is valid, that failure to dispute a debt has no legal effect on a debtor’s rights and that in any subsequent collection action, the burden would remain on the debt collector to prove the validity of the debt.
I adopt the reasoning of these district courts and conclude replacing the phrase “debt collector” with the word “creditor” could mislead the least-sophisticated consumer. Without the phrase “debt collector,” it is possible that the consumer would not know that the debt collector is the only entity entitled to assume the validity of the debt, or that collection is based on a temporary fiction that the debt is valid. Indeed, the consumer could believe that, if he does not respond, the creditor, as opposed to the debt collector, would presume the debt to be valid.
B. FDCPA Claim Against Salomone
I next conclude Plaintiff adequately pled a claim against individual Defendant Salomone. Defendants argue that Salomone is protected from individual liability
The FDCPA defines the term “debt collector” to include “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The Supreme Court has interpreted this definition to include lawyers who regularly engage in consumer debt collection activity. Heintz v. Jenkins,
Turning to whether Plaintiff adequately alleged Salomone is a debt collector, “[t]here is no requirement in the FDCPA that the facts to support the allegation that a party is a debt collector be pled with particularity.” Carter v. Daniels,
C. Class Action
Finally, I turn to Defendants’ argument that Plaintiffs class action must be dismissed for failure to satisfy Southern District of Florida Rules 23.1(b)(2)(A) and 23.1(b)(2)(D), and because Plaintiff does not seek declaratory relief and therefore may not pursue a class action under Federal Rule of Civil Procedure 23(b)(2). [ECF No. 20, at 10]. Upon review of the allegations pertaining to the class [ECF No. 1, at ¶¶ 21-27],
Defendants’ Motion to Dismiss Class Action Complaint [ECF No. 20] is DENIED.
Notes
. The facts alleged in Plaintiff’s Complaint [ECF No. 1] are taken as true for purposes of resolving Defendants' Motion to Dismiss, see Maradiaga v. United States,
. Defendants concede in their Motion to Dismiss that Plaintiff has adequately alleged (1) Plaintiff has been the object of collection activity arising from a consumer debt and (2) Defendants are debt collectors as defined by the FDCPA. [ECF No. 20, at 3].
. Kinkaid v. Allied Interstate, LLC, No. 11-2288,
. After conceding in the Motion to Dismiss that Plaintiff adequately alleged all Defendants were debt collectors [ECF No. 20, at 3], Defendants contend for the first time in their Reply [ECF No. 28, at 6] that Plaintiff insufficiently alleged Defendant Salomone is a debt collector.
. In seeking certification under Rule 23(b)(2), Plaintiff alleges “Defendants have acted on grounds generally applicable to the class thereby making appropriate declaratory relief with respect to the class as whole.” [ECF No. 1, at ¶ 27],