PHILADELPHIA – Class action litigation filed by a Montgomery County man against a New York company which allegedly violated the Fair Debt Collection Practices Act in its efforts to collect debts for Bank of America has been settled.
Rafal Leszczynski (individually and on behalf of all others similarly situated) of Bala Cynwyd first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 8 versus D&A Services, LLC of Nyack, N.Y. and John Does 1-25.
“Some time prior to Feb. 3, 2020, an obligation was allegedly incurred to Bank of America N.A. Bank of America N.A. contracted with defendant D&A, a debt collector, who is now collecting the alleged debt. Defendants collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet,” the suit said.
“On or about Feb. 3, 2020, defendant D&A sent plaintiff a collection letter regarding the alleged debt owed. When a debt collector solicits payment from a consumer, it must, within five days of an initial communication, provide the consumer with a written validation notice, known as a 'G-Notice.'”
The G-Notice must include the following information:
• The amount of the debt;
• The name of the creditor to whom the debt is owed;
• 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;
• A statement that if the consumer notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of the judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
• 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.
“The Letter contains this standard language but also states, ‘If you dispute the debt or any part thereof...the law requires our firm to suspend our efforts to collect the debt until we mail the requested information to you. The consumer’s right to have collection efforts cease and information sent by mail can only be triggered via a written dispute. By omitting the writing requirement, defendant falsely communicated the consumer’s requirements under the FDCPA,” per the suit.
“This false and inaccurate portion of the letter is deceptive and misleading because it deceptively and improperly advises plaintiff of the proper method for exercising his validation rights under the FDCPA. Plaintiff sustained an informational injury as he was not fully apprised of his rights and responsibilities necessary to properly exercise his options under Section 1692(g). Furthermore, plaintiff would be harmed by believing he was asserting these rights by phone, when in reality this method was insufficient and would not work.”
The plaintiff stated he effectively waived his rights because he was not properly informed of the “G-Notice” requirements set forth in the Fair Debt Collection Practices Act. As a result of defendant’s deceptive misleading and false debt collection practices, the plaintiff says he has been damaged.
UPDATE
On Nov. 23, counsel for the defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and dismiss plaintiff’s complaint with prejudice for the plaintiff allegedly not demonstrating proof of an injury.
“There is no basis for plaintiff’s action. D&A’s sentence regarding written disputes is compliant with the FDCPA. Any contention otherwise is illustrative of an idiosyncratic interpretation by plaintiff of an otherwise clear debt collection letter, and it ignores the fact that a debt collector is not obligated to quote the statute’s language verbatim,” the motion stated.
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert granted the dismissal motion on April 20, dismissing the case without prejudice for its failure to state a claim.
“If a debt collection letter ‘can be reasonably read to have two or more different meanings, one of which is inaccurate,’ it may be deceptive. But even if the Court considers only the sentence Leszczynski complains about – absent the rest of the letter’s context – his reading lacks a ‘quotient of reasonableness, a basic level of understanding, and a willingness to read with care…,” Pappert said.
“Leszczynski’s interpretation is not a reasonable alternative interpretation and his conclusory characterization of the letter as ‘deceptive and misleading’ is not enough to show he suffered an ‘informational injury’ that would confer standing. His claims are dismissed without prejudice because Leszczynski lacks standing to sue.”
For counts of violating the Fair Debt Collection Practices Act, the plaintiffs are seeking statutory damages, actual damages, attorneys’ fees and expenses, pre-judgment, post-judgment interest and such other and further relief as the Court may deems just and proper, plus a trial by jury.
The plaintiffs were represented by Antranig Garibian of Garibian Law Offices, in Philadelphia.
The defendants were represented by Aaron R. Easley of Sessions Fishman Nathan & Israel, in Flemington, N.J.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-04387
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com