H.1 Sample Brief in Support of Motion for Partial Summary
Judgment
This sample brief is intended for demonstration, and must be adapted by a legal
professional to meet the facts, actual needs, and requirements of each case, as well as local
practice. The brief is also available online as companion material to this treatise.
Consumer law pleadings on this and other topics can be found in National Consumer Law
Center, Consumer Law Pleadings (Online with Index).
UNITED STATES DISTRICT COURT
FOR THE [district name] DISTRICT OF [state name]
[plaintiff][name of plaintiff]
Plaintiff,
[v.]
[defendant][name of defendant]
Defendant.
[number]Civil Action No. [number]
PLAINTIFF’S BRIEF IN SUPPORT OF MOTION FOR
PARTIAL SUMMARY JUDGMENT
Table of Contents
Page
Table of Citations
I. Procedural History
II. Statement of Facts
III. Statement of Question Presented
IV. Argument
A. Standard for Summary Judgment
B. The “Least Sophisticated Consumer” Standard Is Used to Analyze Violations of
the Act
C. Defendant’s Failure to Provide the Debt Collection Warning in Its Letters
Violates 15 U.S.C. § 1692e(11)
D. Defendant’s Threat to Sue on a Time-Barred Debt Violates the FDCPA
E. Defendants’ Telephone Messages Violate the FDCPA
F. Plaintiff Reserves the Determination of Damages for the Jury
V. Conclusion
Table of Citations
Page
Anderson v. Liberty Lobby, Inc.
477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)
Avila v. Rubin
84 F.3d 222 (7th Cir. 1996)
Baker v. G.C. Services Corp.
677 F.2d 775 (9th Cir. 1982)
Bentley v. Great Lakes Collection Bureau
6 F.3d 60 (2d Cir. 1993)
Cacace v. Lucas
775 F. Supp. 502 (D. Conn. 1990)
Carroll v. Wolpoff & Abramson
961 F.2d 459 (4th Cir. 1992)
Chauncey v. JDR Recovery Corp.
118 F.3d 516 (7th Cir. 1997)
Clomon v. Jackson
988 F.2d 1314 (2d Cir. 1993)
Drossin v. National Action Financial Services, Inc.
641 F. Supp. 2d 1314 (S.D. Fla. 2009)
Dutton v. Wolpoff & Abramson
5 F.3d 649 (3d Cir. 1993)
Edwards v. Niagara Credit Solutions Inc.
586 F. Supp. 2d 1346 (N.D. Ga. 2008), aff’d on other grounds 584 F.3d 1350 (11th Cir. 2009)
Emanuel v. American Credit Exchange
870 F.2d 805 (2d Cir. 1989)
Frey v. Gangwish
970 F.2d 1516 (6th Cir. 1992)
Graziano v. Harrison
950 F.2d 107 (3d Cir. 1991)
Guerrero v. RJM Acquisitions L.L.C.
499 F.3d 926 (9th Cir. 2007)
Hulshizer v. Global Credit Services, Inc.
728 F.2d 1037 (8th Cir. 1984)
Jeter v. Credit Bureau, Inc.
760 F.2d 1168 (11th Cir. 1985)
1Kobs v. Arrow Service Bureau, Inc.
134 F.3d 893 (7th Cir. 1986)
Matsushita Electric Industrial Co. v. Zenith Radio Corp.
475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)
McCartney v. First City Bank
970 F.2d 45 (4th Cir. 1992)
Miller v. Payco-General American Credits, Inc.
943 F.2d 482 (4th Cir. 1991)
Pipiles v. Credit Bureau of Lockport, Inc.
886 F.2d 22 (2d Cir. 1989)
Pressley v. Capital Credit & Collection Service, Inc.
760 F.2d 922 (9th Cir. 1985)
Riveria v. MAB Collections, Inc.
682 F. Supp. 174 (W.D.N.Y. 1988)
Russell v. Equifax A.R.S.
74 F.3d 30 (2d Cir. 1996)
Sibley v. Fulton DeKalb Collection Service
677 F.2d 830 (11th Cir. 1982)
Stojanovski v. Strobl and Manoogian, P.C.
783 F. Supp. 319 (E.D. Mich. 1992)
Swanson v. Southern Oregon Credit Service, Inc.
869 F.2d 1222 (9th Cir. 1988)
Taylor v. Perrin Landry, deLaunay & Durand
103 F.3d 1232 (5th Cir. 1997)
Tolentino v. Friedman
46 F.3d 645 (7th Cir. 1995)
United States v. National Financial Services, Inc.
98 F.3d 131 (4th Cir. 1996)
Other Authorities:
15 U.S.C. § 1692 et seq.
Federal Rules of Civil Procedure, Rule 56
I. PROCEDURAL HISTORY
On [date complaint filed], Plaintiff [name] filed his Complaint and Demand for Jury Trial
with this Court, alleging that Defendant [name] violated the Fair Debt Collection Practices Act.
On or about [date answer filed], Defendant filed its Answers and Defenses admitting that it had
mailed letter(s) seeking to collect a debt from the Plaintiff, but denying that the Fair Debt
Collection Practices Act was violated. The parties have exchanged and answered written
discovery.
Plaintiff now files this Motion for Partial Summary Judgment and this brief in support
thereof.
II. STATEMENT OF FACTS
By correspondence dated [date], Defendant [name] mailed letter(s) to Plaintiff [name]
seeking to collect an alleged debt. (Copies of these letters are attached hereto as Addenda “A”
through “[rule].”) These communications state: [insert language from the collector’s
correspondence that is attacked by the motion for partial summary judgment]. The debt
collector’s demand for payment within [number] days is juxtaposed to the 30-day period
provided in the validation notice, within which the consumer may make a request in writing to
the collector for verification of the debt.
The Defendant’s letter suggests that legal action may be taken, stating: [insert the
appropriate language].
The debt collector’s letter(s) fail to contain the debt collection warning: This is an
attempt to collect a debt and any information obtained will be used for that purpose.
III. STATEMENT OF QUESTIONS PRESENTED
A. Did the Defendant’s Letter Fail to Provide the Debt Collection Warning in Violation
of 15 U.S.C. § 1692e(11)?
B. Did the Defendant’s Threat to File Suit in a Time Barred Debt Violated the FDCPA?
C. Did Defendant’s Telephone Messages Violate the FDCPA?
IV. ARGUMENT
A. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. A
summary judgment, interlocutory in character, may be rendered on the issue of liability alone,
although there is a genuine issue as to the amount of damages.
The entry of summary judgment is inappropriate where there exists a genuine and material issue
of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S. Ct. 2505, 2509–2510, 91
L. Ed. 2d 202 (1986). Substantive law defines which facts are material and only disputes over
facts that might affect the outcome of the case will defeat summary judgment. Id. at 248, 106 S.
Ct. at 2510. A factual dispute is genuine if a “reasonable jury could return a verdict for the non-
moving party.” Id. Although all inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the non-moving party, once the movant has met its burden
of demonstrating the absence of a genuine issue of material fact, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as to the
material facts” to prevent its entry. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. 547, 586–587, 106 S. Ct. 1348, 1355–1356, 89 L. Ed. 2d 538 (1986). It is not sufficient for
the party opposing summary judgment to provide a scintilla of evidence supporting its case.
Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 252, 106 S. Ct. at 2512.
There is no dispute of facts regarding the letter(s) and their content which Defendant sent
to Plaintiff [name]. Thus, a grant of partial summary judgment is appropriate for any violations
of the Fair Debt Collection Practices Act arising from Defendant’s letters.
B. The “Least Sophisticated Consumer” Standard Is Used to Analyze Violations of the Act
The “least sophisticated consumer” standard is used to evaluate whether the debt
collector’s conduct violated the FDCPA. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193–1194 (11th Cir. 2010); 2Miller v. Javitch, Block & Rathbone, 561 F.3d 588 (6th Cir. 2009).
The FDCPA states that its purpose, in part, is “to eliminate abusive debt collection practices by
debt collectors.” 15 U.S.C. § 1692(e). It is designed to protect consumers from unscrupulous
collectors, whether or not there is a valid debt. Baker v. G.C. Services Corp., 677 F.2d 775, 777
(9th Cir. 1982). The FDCPA broadly prohibits unfair or unconscionable collection methods;
conduct which harasses, oppresses or abuses any debtor; and any false, deceptive or misleading
statements, in connection with the collection of a debt. Heintz v. Jenkins, 514 U.S. 291, 115 S.
Ct. 1489, 131 L. Ed. 2d 395 (1995). “[I]t limits ‘debt’ to consumer debt.” 15 U.S.C. §§ 1692d,
1692e, and 1692f and requires the debt collector to provide the consumer with his or her rights,
15 U.S.C. § 1692g, under the Act.
The U.S. Court of Appeals for the Fourth Circuit has held that whether a communication
or other conduct violates the FDCPA is to be determined by analyzing it from the perspective of
the “least sophisticated debtor.” United States v. National Financial Services, Inc., 98 F.3d 131
135–136 (4th Cir. 1996). [Substitute the leading decision from your circuit court, e.g., Brown v.
Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir. 2006).]
“The basic purpose of the least-sophisticated-consumer standard is to ensure that the
FDCPA protects all consumers, the gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d
1314, 1318 (2d Cir. 1993). See also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d
1232, 1236 (5th Cir. 1997); U.S. v. Nat’l Fin. Serv., Inc., 98 F.3d 131, 136 (4th Cir. 1996);
Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996); Bentley v. Great Lakes Collection Bureau, 6
F.3d 60 (2d Cir. 1993); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Swanson v. S.
Oregon Credit Serv., Inc., 869 F.2d 1222, 1225–1226 (9th Cir. 1988); Jeter v. Credit Bureau, Inc.,
760 F.2d 1168, 1172–1175 (11th Cir. 1985). “While protecting naive consumers, the standard
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.” United States v. National Financial Services, Inc., 98 F.3d at 136
(citation omitted). See also Taylor v. Perrin Landry, deLaunay & Durand, 103 F.3d 1232, 1236
(5th Cir. 1997); Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996); Avila v. Rubin, 84 F.3d 222,
226-227 (7th Cir. 1996) (“the standard is low, close to the bottom of the sophistication meter”);
Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir. 1993); Clomon v. Jackson, 988 F.2d
1314 (2d Cir. 1993); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Jeter v. Credit Bur.,
Inc., 760 F.2d 1168 (11th Cir. 1985).
3“The FDCPA is a strict liability statute to the extent it imposes liability without proof of
an intentional violation.” 4Allen ex rel. Martin v. LaSalle Bank, N.A., [rule] F.3d [rule], 2011 WL
94420, at *3 (3d Cir. Jan. 12, 2011). See also LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1190 (11th Cir. 2010); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010); Ellis
v. Solomon and Solomon, P.C., 591 F.3d 130, 135(2d Cir. 2010); Ruth v. Triumph P’ships, 577
F.3d 790, 805 (7th Cir. 2009). “As the FDCPA is a strict liability statute, proof of one violation is
sufficient to support summary judgment for the plaintiff.” Cacace v. Lucas, 775 F. Supp. 502,
505 (D. Conn. 1990). See also Stojanovski v. Strobl and Manoogian, P.C., 783 F. Supp. 319,
323 (E.D. Mich. 1992); Riveria v. MAB Collections, Inc., 682 F. Supp. 174, 178–179 (W.D.N.Y.
1988). “Because the Act imposes strict liability, a consumer need not show intentional conduct
by the debt collector to be entitled to damages.” Guerrero v. RJM Acquisitions L.L.C., 499 F.3d
926 (9th Cir. 2007); Russell v. Equifax A.R.S., 74 F.3d at 33. See also Clark v. Capital Credit &
Collection Servs., 460 F.3d 1162, 1176 (9th Cir. 2006); Bentley v. Great Lakes Collection Bureau,
6 F.3d at 62; Clomon v. Jackson, 988 F.2d at 1318. Furthermore, the question of whether the
consumer owes the alleged debt has no bearing on a suit brought pursuant to the FDCPA.
McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992); Baker v. G.C. Services Corp., 677
F.2d 775, 777 (9th Cir. 1982).
Whether [name] violated the FDCPA must be evaluated from the standpoint of the least
sophisticated consumer.
C. Defendant’s Failure to Provide the Debt Collection Warning in Its Initial Letter Violates
15 U.S.C. § 1692e(11)
The Act at 15 U.S.C. § 1692e provides, in pertinent part:
[T]he following conduct is a violation of this section:
(11) The failure to disclose in the initial written communication with the consumer
and, in addition, if the initial communication with the consumer is oral, in that initial oral
communication, 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 collector, except that this paragraph shall not apply to a
formal pleading made in connection with a legal action.
The U.S. Courts of Appeals, considering the application of the above provision, have
consistently held that in an initial communication the debt collection warning must be provided.
Guerrero v. RJM Acquisitions L.L.C., 499 F.3d 926 (9th Cir. 2007); Tolentino v. Friedman, 46
F.3d 645 (7th Cir. 1995); Dutton v. Wolpoff & Abramson, 5 F.3d 649 (3d Cir. 1993); Frey v.
Gangwish, 970 F.2d 1516 (6th Cir. 1992); Carroll v. Wolpoff & Abramson, 961 F.2d 459 (4th Cir.
1992); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 26 (2d Cir. 1989); Emanuel v.
American Credit Exchange, 870 F.2d 805, 808 (2d Cir. 1989); Pressley v. Capital Credit &
Collection Services, Inc., 760 F.2d 922, 925 (9th Cir. 1985); Hulshizer v. Global Credit Services,
Inc., 728 F.2d 1037, 1038 (8th Cir. 1984).
The U.S. Court of Appeals for the Eighth Circuit found the quoted statutory language
“unambiguous” and ruled that the failure to include “the clear language of the statute” violated
the Act. Hulshizer v. Global Credit Services, Inc., 728 F.2d at 1038. The Court of Appeals for
the Ninth Circuit agreed with such an interpretation when the communication involved is an
initial communication. Pressley v. Capital Credit & Collection Services, Inc., 760 F.2d at 926.
D. Defendant’s Threat to Sue on a Time-Barred Debt Violates the FDCPA
Defendants’ practice of sending letters in the form of Exhibits A and/or B to Pennsylvania
residents to collect time barred dishonored checks threatening that “[p]ursuant to Pennsylvania
law” the consumer “may be subject to a civil penalty, court costs and reasonable attorneys fees
after suit has been filed” violates the FDCPA at 15 U.S.C. §§ 1692e(2)(A), e(3), e(5), e(10),
1692f(1), and 1692g(a)(2). The Pennsylvania statute provides that an action to recover “an
unaccepted draft to pay the draft must be commenced within three years after dishonor of the
draft or ten years after the date of the draft, whichever period expires first.” 13 Pa. C.S. §
3118(c). Here Defendants have attempted to collect Plaintiff’s dishonored checks written on
March 18 and 20, 1994 with collection letters dated April 24, 2004. PSMF # 14 and 22. Those
checks were dishonored shortly after presentment in March, 1994. PSMF # 1. Whether applying
the time limitation of three years or 10 years, this time limitation had expired at the time
Defendants’ letters were sent. Thus, the alleged debts of Plaintiff is time barred.
A debt collector’s threat of suit on a time-barred debt violates the FDCPA at 15 U.S.C. §§
1692e and 1692f. Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (M.D. Ala. 1987).
Although a debt collector may request voluntary payment of a time-barred obligation, it may not
threaten to file suit. Freyermuth v. Credit Bureau Servs., 248 F.3d 767 (8th Cir. 2001); Gervais v.
Riddle & Assocs., P.C., 479 F. Supp. 2d 270 (D. Conn. 2007); Reese v. Arrow Fin. Serv., L.L.C.,
202 F.R.D. 83, 92–93 (D. Conn. 2001); Walker v. Cash Flow Consultants, 200 F.R.D. 613, 615–
616 (N.D. Ill. 2001); Shorty v. Capital One Bank, 90 F. Supp. 2d 1330 (D.N.M. 2000) and
Stepney v. Outsourcing Solutions, Inc., 1997 WL 722972, 1997 U.S. Dist. LEXIS 18264 (N.D.
Ill. Nov. 13, 1997).
The FDCPA prohibits “[t]he threat to take any action that cannot legally be taken or that
is not intended to be taken.” 15 U.S.C. § 1692e(5). Defendants’ statement in Exhibits A and B
that “you may be subject to a civil penalty, court costs and reasonable attorneys fees after suit has
been filed” was “part and parcel of general representations which a reasonable jury could find to
be violative of §§ 1692e(5) and (10), i.e., potentially deceptive or false use of threats to
recommend legal action.” Jeter v. Credit Bureau, 760 F.2d 1168, 1179 (11th Cir. 1985).
In a similar case, the district court found defendant violated the FDCPA by sending
misleading letters that threatened suit on a time-barred debt. The court stated:
As discussed above, the February 17 letter at issue here unambiguously threatened litigation.
Defendants respond by arguing only that the statute of limitations did not bar them from
pursuing litigation against Goins because the statute of limitations is not a jurisdictional bar, but
merely an affirmative defense that can be waived. As the statute of limitations would be a
complete defense to any suit, however, the threat to bring suit under such circumstances can at
best be described as a “misleading” representation, in violation of § 1692e. As an officer of the
court, Boyajian has an obligation to represent to the court to the best of his knowledge, “after an
inquiry reasonable under the circumstances,” that the claims presented are “warranted by
existing law or by a nonfrivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law.” See Fed. R. Civ. P. 11; see also State v. Turner,
267 Conn. 414, 430, 838 A.2d 947 (2004) (defining frivolous action as one in which “the lawyer
is unable either to make a good faith argument on the merits of the action taken or to support the
action taken by a good faith argument for an extension, modification or reversal of existing
law.”). Sanctions therefore would be appropriate if an attorney knowingly filed suit on an
undisputedly time-barred claim. See Steinle v. Warren, 765 F.2d 95 (7th Cir. 1985) (awarding
attorney fees to opposing party and imposing Rule 11 sanctions where attorney knew claim was
time-barred). That the statute of limitations is an affirmative defense does not relieve defendants
of their professional responsibility, when they do not dispute the applicability or viability of the
defense. Because defendants were not entitled to sue in such circumstances, the threats to sue in
the February 17 letter are improper. See Kimber v. Federal Financial Corp., 668 F. Supp. 1480
(M.D. Ala. 1987) (finding FDCPA violation where attorney threatened to sue on a time-barred
claim).
Goins v. JBC & Assoc., P.C., 352 F. Supp. 2d 262, 272 (D. Conn. 2005). See Thinesen v. JBC
Legal Group, P.C., 2005 WL 2346991, 2005 U.S. Dist. LEXIS 21637, *11 (D. Minn. Sept. 26,
2005).
In Gervais v. Riddle & Assocs., P.C., 363 F. Supp. 2d 345, 352 (D. Conn. 2005) (citation
omitted), the district court concluded that statements by the debt collector would indicate to the
least sophisticated consumer that “ ‘the clear import of the language, taken as a whole, is a that
[some] type of legal action has already been or is about to be initiated and can be averted from
running its course only by payment.’ “
Likewise, the district court in Perretta v. Capital Acquisitions & Mgmt. Co., 2003 WL
2183757, at *4, 2003 U.S. Dist. LEXIS 10070, at *14 (N.D. Cal. May 5, 2003), reviewing the
debt collector’s statements stated: “this court does not hold that as a matter of law, it would be
unreasonable for the least sophisticated debtor to interpret defendant’s statements as a threat of
legal action.” The court stated further: “the court concludes that the least sophisticated debtor
would be reasonable to interpret the threat of ‘further steps’ to mean legal action. Indeed, given
our rather litigious society, an individual not well versed in the mechanics of debt collection may
very well consider legal action to be the next possible--and probable--’step.’ Also, the vague
nature of defendant’s statement lends itself to such an interpretation. . . .” Id. at *15 (citation
omitted). Also, see Stepney v. Outsourcing Solutions, Inc., 1997 WL 722972, 1997 U.S. Dist
LEXIS 18264, at *12–*14 (N.D. Ill. Nov. 4, 1997).
The district court in Francis v. Snyder, 389 F. Supp. 2d 1034, 1041 (N.D. Ill. 2005),
pondered what the point of saying the consumer is in violation of a state’s law would be “other
than to indicate to the debtor that she may be sued, particularly when the letter is from an
attorney.” Similarly, Defendants here invoke “Pennsylvania law” and threaten the consumer
with “a civil penalty, costs, and reasonable attorneys fees after suit is filed.” This court should
find that Defendants have violated 15 U.S.C. § 1692e(5) as did the Francis v. Snyder court.
The district court in Florence v. National Sys., 1983 U.S. Dist. LEXIS 20344, at *10–*11
(N.D. Ga. Oct. 14, 1983), stated: “This letter clearly falls within the prohibition of §§ 1692e(5)
and e(10) by creating ‘the impression that legal action by defendant is a real possibility.’ “ Baker
v. G.C. Services Corp., 677 F.2d 775 (1982), and also misrepresents the legal status of the debt in
violation of § 1692e(2). Defendant has unquestionably violated the prohibitions of § 1692e.
Defendants’ letters, Exhibits A and B, mislead the least sophisticated consumer to believe
that litigation to recover a time-barred debt will be initiated. Exhibits A and B appear on the
letterhead of a law firm are purportedly signed by the law firm. Defendants invoke Pennsylvania
law stating: “Pursuant to Pennsylvania law, you have thirty (30) days from receipt of this letter
to pay the full amount of each check plus a service charge of $30.00 per check for the total
payment of $***.**. You are cautioned that unless this total amount is paid in full within the
thirty (30) day after the date this letter is received, you may be subject to a civil penalty, court
costs and reasonable attorneys fees after suit has been filed.” The least sophisticated consumer is
lead to the conclusion that a suit could and would be filed. This is a false statement. A lawsuit
may not be brought because it is barred by the limitations period of either of the three or ten year
timeframe in which to bring suit on a dishonored check. Thus, Defendants have threatened the
least sophisticated consumer with action that could not legally be taken and misrepresented its
ability to do so in violation of 15 U.S.C. §§ 1692e(5) and (10).
5E. Defendants’ Telephone Messages Violate the FDCPA
The FDCPA prohibits “the placement of telephone calls without meaningful disclosure of
the caller’s identity.” 15 U.S.C. § 1692d(6). Also prohibited is “the failure to disclose . . . that
the communication is from a debt collector.” 15 U.S.C. § 1692e(11); Edwards v. Niagara Credit
Solutions Inc., 586 F. Supp. 2d 1346, 1351–1353 (N.D.Ga. 2008), aff’d on other grounds, 584
F.3d 1350 (11th Cir. 2009); Drossin v. National Action Financial Services, Inc., 641 F. Supp. 2d
1314, 1318–1320 (S.D. Fla. 2009).
The district court in Foti v. NCO Fin. Sys., 424 F. Supp. 2d 643, 668–670 (S.D.N.Y.
2006), stated:
Rather, there is nothing in the context of the January 18 Pre-Recorded Message
that would clearly inform a consumer that s/he is speaking to a debt collector, or,
for that matter, that the subject of the “business matter” requiring “immediate
attention” is a debt. Instead, a consumer would have to, upon hearing the
message, recall that it previously received mail from a debt collection agency by
the name of “NCO Financial Systems.” Such a burden on the consumer is
unreasonable. The least sophisticated consumer, who may receive voluminous
messages and calls, could easily be confused about the identify of “NCO
Financial Systems,” particularly given the vague reference in the message to “a
personal business matter that requires your immediate attention.”
”The Court thus finds that the messages at issue the violated 15 U.S.C. § 1692e(11) because they
were communications to a consumer in which the debt collector (Defendant) failed to identify
the communication as coming from a debt collector.” Edwards v. Niagara Credit Solutions, Inc.,
supra, 1361–1362. See also Berg v. Merchants Ass’n Collection Div., Inc., 586 F. Supp. 2d 1336
(S.D. Fla. 2008).
In Belin v. Litton Loan Servicing, 2006 WL 1992410, at *5, 2006 U.S. Dist. LEXIS
47953 (M.D. Fla. July 14, 2006), Judge Bucklew wrote: “the court finds that the messages left on
Ms. Belin’s answering machine constitute communications that can support a violation of 15
U.S.C. § 1692e(11).” In another case involving telephone messages the court granted summary
judgment for the consumer on her claims that the debt collector’s telephone messages violated 15
U.S.C. § 1692e(11); Leyse v. Corporate Collection Servs., 2006 WL 2708451, at *4, 6, 2006 U.S.
Dist. LEXIS 67719 (S.D.N.Y. Sept. 18, 2006). “Because it appears that defendant’s messages
are ‘communications’ subjecting defendant to the provisions of § 1692e(11), it also appears that
defendant has violated § 1692e(11) because the messages do not convey the information required
by § 1692e(11), in particular, that the messages were from a debt collector.” Hosseinzadeh v.
M.R.S. Associates, Inc., 387 F. Supp. 2d 1104, 1116 (C.D. Cal. 2005).
Defendants’ telephone messages to Plaintiffs failed to meaningfully identify the caller or
to state that the call was from a debt collector. Thus, Plaintiffs have demonstrated that
Defendants’ telephone messages violated 15 U.S.C. § 1692d(6) and § 1692e(11).
F. Plaintiff Reserves the Determination of Damages for the Jury
By this motion, the Plaintiff seeks only an award of partial summary judgment with
regard to the Defendant’s liability for violations of the Fair Debt Collection Practices Act. The
determination of damages, as requested in the Complaint, is reserved for trial by jury. Kobs v.
Arrow Service Bureau, Inc., 134 F.3d 893 (7th Cir. 1986); Sibley v. Fulton DeKalb Collection
Services, 677 F.2d 830 (11th Cir. 1982).
After the determination of liability and damages, Plaintiff will seek an award of attorney
fees pursuant to the Fair Debt Collection Practices Act. 15 U.S.C. § 1692k(a)(3). “Because the
FDCPA was violated, however, the statute requires the award of costs and reasonable attorney’s
fee . . .” Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d at 28. See also Graziano v.
Harrison, 950 F.2d at 113.
V. CONCLUSION
Defendant [name]’s collection letter(s), dated [date(s)], violated the Fair Debt Collection
Practices Act by failing to provide the debt collection warning in its initial letter in violation of
15 U.S.C. § 1692e(11); (2) threatening to sue on a time-barred debt; and (3) leaving messages
without meaningful identification of the caller’s identity in violation of 15 U.S.C. § 1692d(6).
Applying the least sophisticated consumer standard of analysis, partial summary judgment on the
question of liability should be awarded in favor of the Plaintiff on these violations. Plaintiff
requests that damages be determined at a trial before jury as requested in his Complaint.
Respectfully submitted,
[signature]
[attorney]
[firm]
[street address]
[city, state zip]
[telephone number]
Attorney for Plaintiff