A District Court judge in New York has granted a defendant’s motion to partially dismiss one of the two counts against it in a Fair Debt Collection Practices Act lawsuit, ruling that the language in an identity theft affidavit that was sent to the plaintiff did not make it appear that the defendant was affiliated with the federal government and that a notarization requirement was falsely conveyed.
A copy of the ruling in the case of Rosa v. Mandarich Law Group can be accessed by clicking here.
The plaintiff received a letter from the defendant that stated “You have indicated that you may be the victim of identity theft” and included a blank Identity Theft Affidavit for the plaintiff to fill out. The letter also instructed the plaintiff to send copies of his Social Security card, driver’s license, and proof of residency when he sent back the affidavit.
The affidavit includes a section for the affiant to certify the information being provided is truthful and accurate and includes a space for the signature of a notary or non-relative witness.
The plaintiff filed suit, alleging the defendant violated Sections 1692e, 1692e(1), 1692e(10), 1692e(2)(A), and 1692f of the FDCPA. The defendant’s motion to dismiss only dealt with the 1692e claims and did not include the 1692f claim.
In arguing that the language of the letter and the affidavit made it appear as though the defendant were affiliated with the government, the plaintiff focused on two phrases:
“I also understand that is [sic] affidavit or the information it contains may be made available to federal, state, and/or local law enforcement agencies for such action within their jurisdiction as they deem appropriate.”
“I understand that knowingly making any false or fraudulent statement or representation to the government may constitute a violation of 18 U.S.C. §1001 or other federal, state, or local criminal statutes, and may result in imposition of a fine or imprisonment or both.”
But letters are not read in isolation, noted Judge Lewis J. Liman of the District Court for the Southern District of New York. The phrases in question were immediately preceded by the statement that the “affidavit or the information it contains may be made available to federal, state, and/or local law enforcement agencies for such action within their jurisdiction as they deem appropriate.” This statement makes it clear that the defendant is not a federal, state, or local law enforcement agency, Judge Liman ruled. “The language of the Theft Affidavit simply conveys information regarding the possible consequences of making a false statement in the Theft Affidavit. It does not mislead the putative-debtor as to the nature and legal status of the underlying debt or impede a consumer’s ability to respond to or dispute collection, in any way that the FDCPA is intended to protect.”
