A District Court judge in New York has granted a defendant’s motion for judgment on the pleadings after it was sued for allegedly violating the Fair Debt Collection Practices Act by identifying different creditors in two separate collection letters.
A copy of the ruling in the case of Olson v. Enhanced Recovery Co., can be accessed by clicking here.
The plaintiff received two collection letters about 40 days apart from one another in an attempt to collect on a retail credit card debt. The first letter included the following identifying information at the top of the page:
Creditor: Kohl’s Department Stores, Inc.
Original Balance: $1,224.33
Original Creditor: Capital One, N.A.
Interest Accrued: N/A
Re: Your Kohl’s Credit Card Account: XXXXXXXX6652
Non-interest Charges & Fees: N/A
Amount of Debt: $1,224.33
Payments: -$0.00
Reference Number: XXXXXXXXX
Settlement Amount: $612.17
The second letter changed the information around slightly.
Creditor: Capital One, N.A.
Original Balance: $1,224.33
Original Creditor: Capital One, N.A.
Interest Accrued: N/A
Re: Your Kohl’s Credit Card Account: XXXXXXXX6652
Non-interest Charges & Fees: N/A
Amount of Debt: $1,224.33
Payments: -$0.00
Reference Number: XXXXXXXXX
Settlement Amount: $612.17
The plaintiff filed suit, alleging the two letters violated Sections 1692g(b) and 1692e(2)(A) and/or 1692e(10) of the FDCPA because Kohl’s should not have been listed as a creditor in the first letter. By changing the name of the creditor in the first letter, the plaintiff argued, the defendant admitted it had made a mistake in the first letter.
Looking at a similar case — Bryan v. Credit Control, LLC — in which Kohl’s was identified as the debt collector’s “Client” in a collection letter, with Chase Bank being identified as the “Original Credit Grantor” a Magistrate Judge found no violation of the FDCPA Kohl’s qualified as a creditor under the statute since it was “the entity offering credit accounts to its customers, including Plaintiff, and. . . facilitating the incurrence of monetary obligations through transactions by consumers exclusively at its stores. Moreover, Kohl’s is responsible for collecting the monies owed as a result of the debts it creates.”
By ruling that Kohl’s was a creditor — at least for the purposes of the FDCPA — the first letter did not violate the statute. And since the second letter was not an initial communication with the plaintiff, there is no “obligation to disclose the creditor’s name” in a subsequent dunning letter, said Judge Sanra Feuerstein of the District Court for the Eastern District of New York.
“Nor is the inconsistent labeling of the ‘Creditor’ in the two Letters misleading given both Letters contain the same salient information regarding Kohl’s,” Judge Feuerstein wrote. “Any technical violation of § 1692e is ameliorated by the inclusion of the Kohl’s information, which eviscerates the potential for the least sophisticated consumer to be frustrated in her ability to intelligently choose her response to said Letters; hence such violation is immaterial.”
