EDNY Judge Denies MTD in FDCPA Case Over Reference to Creditor in Letter

A District Court judge in New York has denied a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act by not properly identifying the creditor to whom a debt was owed in a collection letter, ruling there is enough evidence in the complaint to create a plausible inference that the creditor and debt collector are part of the same company.

A copy of the ruling in the case of Sali v. Zwanger & Pesiri Radiology Group can be accessed by clicking here.

The plaintiff received a collection letter from a collection law firm. The letter included a reference to “Re: Zwanger-Pesiri Radiology Group, LLP” but allegedly did not identify the creditor by name, referencing “our client” in the body of the letter. The plaintiff filed suit, alleging that the reference to the creditor in the letter was not sufficient to comply with Section 1692g(a)(2) of the FDCPA.

The defendant sought to have the case dismissed, arguing that it is a creditor and not subject to the FDCPA. But the plaintiff noted that the only attorney working at the collection law firm is also the general counsel for the defendant. As well, the complaint alleged the address used in the letter by the collection law firm is owned and controlled by the defendant, and that calls to the law firm are answered by employees of the defendant.

The defendant offered a retainer agreement between the law firm and the defendant as well as a lease agreement to demonstrate that the two entities are separate, but because they were not referenced in the complaint, they could not be considered on a motion to dismiss. But Judge Frederic Bloc of the District Court for the Eastern District of New York did note in a footnote that those documents may be considered on a motion for summary judgment.

Because the plaintiff “has plausibly alleged that VanVorst was under Zwanger’s exclusive control … a letter from an ostensibly independent law firm might mislead the least sophisticated consumer as to its source,” Judge Bloc wrote in denying the motion to dismiss.

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