Wright v. AR Resources, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAVONTAE WRIGHT,

individually and on behalf of

all others similarly situated,

Plaintiff,

v. Case No.: 8:20-cv-985-T-33CPT

AR RESOURCES, INC.,

PREMIUM ASSET RECOVERY CORP.,

and JOHN DOES 1-25,

Defendants.

____________________________/

ORDER

This cause comes before the Court pursuant to the Motion

to Dismiss Plaintiff’s Complaint filed by Defendant Premium

Asset Recovery Corporation (“PARC”) on May 27, 2020 (Doc. #

9) and the Motion to Dismiss Complaint filed by Defendant AR

Resources, Inc. (“ARR”), on June 3, 2020 (Doc. # 12). PARC

has joined in ARR’s Motion. (Doc. # 34). Plaintiff Javontae

Wright responded on July 7, 2020. (Doc. ## 25, 26). For the

reasons given below, PARC’s Motion is granted and ARR’s Motion

is granted in part and denied in part as set forth herein.

I. Background

On April 29, 2020, Wright initiated this putative class

action lawsuit against Defendants for violations of the Fair

Debt Collection Practices Act (the “FDCPA”). (Doc. # 1).

According to the complaint, Wright allegedly incurred a debt

to “the EMA of Tampa Bay – St. Joes North.” (Id. at ¶ 23).

Wright alleges that PARC is the current owner of the debt and

an alleged debt collector under the FDCPA. (Id. at ¶¶ 10,

27). PARC then contracted with ARR, also allegedly a debt

collector, to collect the debt. (Id. at ¶ 27).

To that end, on May 8, 2019, ARR sent Wright an initial

collection letter. (Id. at ¶ 29). The May 8 letter, which

Wright attached to her complaint, stated the balance of the

debt, explained that the debt had been sold to PARC, and that

ARR had been contracted to collect the outstanding balance.

(Doc. # 1-1). After explaining the ways in which Wright could

pay the balance, the letter stated: “Please be advised that

our client is a credit reporting client. Your credit report

may have a negative impact if we do not hear from you.” (Id.).

Immediately below that sentence, the May 8 letter also

contained the following language, in the same font as the

rest of the letter but emphasized in bold:

Unless you notify this office within 30 days after

receiving this notice that you dispute the validity

of the debt or any portion thereof, this office

will assume that the debt is valid. If you notify

this office in writing within 30 days from

receiving this notice that you dispute the validity

of the debt or any portion thereof, this office

will obtain verification of the debt or obtain a

copy of a judgment and mail you a copy of such

judgment or verification. If you request this

office in writing within 30 days after receiving

this notice, this office will provide you with the

name and address of the original creditor, if

different from the current creditor.

This is an attempt to collect a debt and any

information obtained will be used for that purpose.

This communication is from a debt collector.

(Id.).

According to Wright, the language about a potential

negative impact on her credit report “completely overshadows”

the rest of the notice “by scaring Plaintiff into making

payment immediately to avoid a ‘negative impact’ credit

reporting instead of exercising his statutory right to

dispute the debt as provided by the FDCPA.” (Doc. # 1 at ¶¶

34-35). In addition, Wright alleges that the “negative

impact” language “coerces payment,” and is “deceptive and

misleading” as well as “confusing and threatening.” (Id. at

¶¶ 36-38).

Based on these allegations, Wright claims that

Defendants have violated the FDCPA, specifically 15 U.S.C. §

1692e (Count I) and 15 U.S.C. § 1692g (Count II). (Id. at ¶¶

43-52). Wright also purports to bring these claims on behalf

of the following class, pursuant to Federal Rule of Civil

Procedure 23:

[A]ll individuals with addresses in the state of

Florida, to whom Defendant [ARR] sent a collection

letter attempting to collect a consumer debt, on

behalf of defendant [PARC], that included deceptive

threats regarding negative impact of the credit

report . . ., which letter was sent on or after a

date one (1) year prior to the filing of this action

and on or before a date twenty-one (21) days after

the filing of this action.

(Id. at ¶¶ 13-14).

Defendants have now each filed Motions to Dismiss the

complaint, to which Wright has responded. (Doc. ## 9, 12, 25,

26). The Motions are ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), the

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted); see also Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice.”). Courts are not “bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986). Generally, the Court must

limit its consideration to well-pled factual allegations,

documents central to or referenced in the complaint, and

matters judicially noticed. La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004).

III. Analysis

To succeed on a claim under the FDCPA, the plaintiff

must establish that (1) the plaintiff has been the object of

collection activity arising from consumer debt, (2) the

defendant is a debt collector as defined by the FDCPA, and

(3) the defendant has engaged in an act or omission prohibited

by the FDCPA. McCray v. Deitsch & Wright, P.A., 343 F. Supp.

3d 1209, 1214-15 (M.D. Fla. 2018). Neither party disputes

that Wright has been the object of collection activity, but

PARC argues that Wright has insufficiently pled its status as

a debt collector under the FDCPA because the allegations on

that point are “conclusory and formulaic recitations of the

FDCPA’s statutory language.” (Doc. # 9 at 6). For its part,

ARR concedes for purposes of the Motion that it is a debt

collector but argues that it has not violated the FDCPA. (Doc.

# 12 at 4). Specifically, ARR argues that cases from other

Circuits demonstrate that the “credit reporting” language in

the May 8 letter does not overshadow a debtor’s understanding

of his rights or violate the FDCPA under the prevailing least-

sophisticated-consumer standard. (Id. at 4-10).

A. Whether PARC is a debt collector under the FDCPA

The FDCPA defines “debt collector” as “any person who

uses any instrumentality of interstate commerce or the mails

in any business the principal purpose of which is the

collection of any debts, or who regularly collects or attempts

to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another.” 15 U.S.C. § 1692a(6).

Accordingly, an entity can be considered a “debt collector”

either through the “principal purpose” definition or the

“regularly collects” definition. See Davidson v. Capital One

Bank (USA), N.A., 797 F.3d 1309, 1315 (11th Cir. 2015) (noting

that “one of the two statutory standards” under Section

1692a(6) “must be met” before an entity can qualify as a “debt

collector”).

To state a claim under the statute, plaintiffs must

plausibly allege “sufficient factual content to enable the

court to draw a reasonable inference that [the defendant]

meets the FDCPA’s definition of ‘debt collector’ and is thus

subject to the Act.” Kurtzman v. Nationstar Mortg. LLC, 709

F. App’x 655, 658–59 (11th Cir. 2017).

Wright responds that PARC (1) holds itself out as a debt

collector through its website and numerous lawsuits; (2) is

clearly a debt collector due to its purchase of the debt here

and subsequent action of contracting debt collection to ARR;

and (3) can be held vicariously liable for ARR’s debt-

collection activities. (Doc. # 26 at 4-10).

The problem with Wright’s first contention is that,

while PARC’s website may very well contain the statements he

cites and PARC may have filed the lawsuits he lists, none of

this information is contained in the complaint. And the Court

is disinclined to consider documents in ruling on a motion to

dismiss that were attached for the first time to a plaintiff’s

response in opposition. See Brooks v. Blue Cross & Blue Shield

of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997)

(explaining that, in general, courts cannot consider anything

beyond the face of the complaint and documents attached

thereto when analyzing a motion to dismiss).

The Court reads Wright’s second and third arguments

together, as the only way PARC could be vicariously liable

for the actions of ARR is due to the fact that PARC purchased

the debt here and then hired another entity, ARR, to do the

actual collecting.

Numerous courts have held that an entity that itself

meets the definition of a debt collector may be held

vicariously liable for unlawful collection activities carried

out by another on its behalf. See Long v. Pendrick Capital

Partners II, LLC, 374 F. Supp. 3d 515, 534-35 (D. Md. 2019)

(collecting cases). However, vicarious liability cannot be

imposed when the principal company itself does not meet the

definition of “debt collector.” Deutsche Bank Trust Co.

Americas v. Garst, 989 F. Supp. 2d 1194, 1202 (N.D. Ala. 2013)

(citing Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379 (3d

Cir. 2000) (abrogated on other grounds by Henson v. Santander

Consumer USA, Inc., 137 S. Ct. 1718 (2017))); see also

Davidson, 797 F.3d at 1316 (in a case outside the vicarious

liability context, holding that, under the plain language of

the statute, “a person who does not otherwise meet the

requirements of [Section] 1692a(6) is not a ‘debt collector’

under the FDCPA”).

The Eleventh Circuit has held that the general partners

of a debt collector may be held jointly and severally liable

for the partnership’s violations of the FDCPA. LeBlanc v.

Unifund CCR Partners, 601 F.3d 1185, 1201 (11th Cir. 2010)

(applying state partnership law and focusing on the

relationships among the parties). But the Eleventh Circuit

has not yet commented on whether entities that assign or

contract debt collection activities to another person or

company may be vicariously liable for that person or company’s

alleged violations of the FDCPA. The Third and Ninth Circuits,

however, have both recently addressed this very question.

The Third Circuit held that, under the FDCPA’s

“principal purpose” definition, an entity that acquires debts

for the purpose of collection but outsources the actual

collections activity may qualify as a “debt collector” under

the statute. Barbato v. Greystone Alliance, LLC, 916 F.3d

260, 261 (3d Cir. 2019) (“[A]n entity that otherwise meets

the ‘principal purpose’ definition cannot avoid the dictates

of the FDCPA merely by hiring a third party to do its

collecting.”). The Third Circuit’s formulation of what

constitutes a “principal purpose” of business goes beyond the

purview of this Order. It is worth noting, though, that the

court found that where the debt owner’s “only business is the

purchasing of debts for the purpose of collecting on those

debts, and, . . . without the collection of those debts, [the

debt owner] would cease to exist,” the debt owner fell

“squarely within” Section 1692a(6)’s “principal purpose”

definition. Id. at 268. Thus, the debt owner could be

vicariously liable for the actions of the debt collection

company it contracted with, if the traditional agency

principles of vicarious liability and a showing of FDCPA

liability could be met — issues that the Third Circuit did

not address. Id. at 269.

Earlier this year, the Ninth Circuit relied on Barbato

to similarly hold that “an entity that otherwise meets the

‘principal purpose’ definition of debt collector cannot avoid

liability under the FDCPA merely by hiring a third party to

perform its debt collection activities.” McAdory v. M.N.S. &

Assocs., LLC, 952 F.3d 1089, 1090 (9th Cir. 2020). The Third

and Ninth Circuits reached this conclusion after a careful

review of the plain text of the statute, the statutory context

of the “principal purpose” definition, and the legislative

history of the FDCPA. Barbato, 916 F.3d at 267-69; McAdory,

952 F.3d at 1093-96. In the absence of guidance from the

Eleventh Circuit, the Court finds the analysis from these

courts to be persuasive. See Rivas v. Midland Funding, LLC,

398 F. Supp. 3d 1294, 1302-03 (S.D. Fla. 2019) (in context of

summary judgment, adopting the Third Circuit’s analysis in

Barbato and finding that a debt purchaser was a “debt

collector” for purposes of the FDCPA).

However, the Court must still follow the Eleventh

Circuit’s directive that plaintiffs must plead factual

content in a complaint that allows this Court to make the

reasonable inference that the defendant is a debt collector.

See Davidson, 797 F.3d at 1313 (“To survive a motion to

dismiss [an FDCPA claim], [a plaintiff] must plead factual

content that allows the court to draw the reasonable inference

that [a defendant] is a debt collector.”); see also Id. at

1311 (affirming dismissal of complaint where the complaint’s

“factual matter establishes that Capital One’s collection

efforts in this case related only to debts owed to it and

that debt collection is only some part of, and not the

principal purpose of, Capital One’s business”).

Wright alleges in the complaint that PARC is a debt

collector under the FDCPA and “is a company that uses the

mail, telephone, and facsimile and regularly engages in

business the principal purpose of which is to attempt to

collect debts alleged to be due another.” (Doc. # 1 at ¶¶ 10-

11). This is conclusory language that merely tracks the

language of the statute. Furthermore, the complaint contains

no factual content that would enable this Court to make the

inferential leap that PARC is a debt collector. As such, it

is insufficient. See Kurtzman, 709 F. App’x at 659 (where

complaint includes only “a conclusory, formulaic recitation

of the statutory language,” a motion to dismiss is due to be

granted); compare Arango v. GMA Invs., LLC, No. 18-9813, 2019

WL 1916202, at *3 (D.N.J. Apr. 30, 2019) (denying motion to

dismiss because the complaint alleged that the debt

purchaser’s principal purpose was the collection of debts and

further alleged that the debt purchaser “has no other

substantial business purpose except to purchase defaulted

receivables from creditors and then attempt collection either

directly or through third parties”); see also Reese v. Ellis,

Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218-19 (11th

Cir. 2012) (holding that plaintiff had sufficiently alleged

that defendant law firm was a “debt collector” under the

FDCPA’s “regularly collects” prong where complaint alleged

that in the year prior to the complaint’s filing, “the firm

had sent to more than 500 people ‘dunning notice[s]’”

containing the same or substantially similar language to the

notices at issue in that case).

This Court takes no position on whether the principal

purpose of PARC’s business is in fact the collection of debts.

That is a factual matter best left for another day. See

Mullery v. JTM Cap. Mgmt., LLC, Nos. 18-cv-549 & 18-cv-566,

2019 WL 2135484, at *3 (W.D.N.Y. May 16, 2019) (adopting the

Barbato definition of debt collector but writing that

“whether, in fact, JTM’s ‘raison d’etre is obtaining payment

on the debts that it acquires,’ . . . can be determined at a

later stage of the litigation and may be grist for the summary

judgment mill”); see also McAdory, 952 F.3d at 1093 (holding

argument regarding nature of debt purchaser’s business was

premature at the motion-to-dismiss stage because “DNF’s

argument about its principal purpose highlights a factual

dispute”). However, under the prevailing pleading standards,

Wright must allege something more than conclusory and

formulaic recitations of the statute to survive PARC’s motion

to dismiss. He must allege some factual content that would

allow this Court to make the reasonable inference that PARC

is a “debt collector” under the language of the FDCPA. See

Davidson, 797 F.3d at 1311-13.

Accordingly, PARC’s motion to dismiss is granted.

However, because the Court believes that this deficiency is

capable of being remedied, Wright will be given leave to file

an amended complaint. See Foman v. Davis, 371 U.S. 178, 182

(1962) (explaining that, in general, leave to amend should be

freely given unless amendment would be futile).

B. Whether PARC and/or ARR violated the FDCPA1

The FDCPA requires that a debt collector’s written

communications to the consumer contain certain information

about the debt and the consumer’s right to dispute the

validity of the debt. 15 U.S.C. § 1692g. Section 1692g(a)

requires the debt collector’s initial communication to the

consumer inform the consumer that, among other things, he or

she has thirty days to dispute the validity of the debt and

that, upon the consumer’s written request within the thirty-

day period, the debt collector will verify the debt and

provide the consumer with the name and address of the original

creditor. 15 U.S.C. § 1692g(a). Additionally, any collection

activities or communications during that thirty-day period

“may not overshadow or be inconsistent with the disclosure of

the consumer’s right to dispute the debt[.]” Id. § 1692g(b).

The FDCPA also prohibits “any false, deceptive, or

misleading representation or means in connection with the

1 Because PARC joined into ARR’s Motion to Dismiss, the Court

addresses their liability under the FDCPA together.

collection of any debt.” 15 U.S.C. § 1692e. This includes the

use of “any false representation or deceptive means to collect

or attempt to collect any debt or to obtain information

concerning a consumer.” Id. § 1692e(10).

In the Eleventh Circuit, whether a collection notice

violates Section 1692g or Section 1692e(10) is determined

objectively under the “least sophisticated consumer”

standard. McCray, 343 F. Supp. 3d at 1214; Jeter v. Credit

Bureau, Inc., 760 F.2d 1168, 1177 n.11 (11th Cir. 1985) (“The

question is not whether [a plaintiff] was deceived, but

whether the ‘least sophisticated consumer’ would have been

deceived.”). “The least-sophisticated consumer standard takes

into account that consumer-protection laws are not made for

the protection of experts, but for the public – that vast

multitude which includes the ignorant, the unthinking, and

the credulous.” Crawford v. LVNV Funding, LLC, 758 F.3d 1254,

1258–59 (11th Cir. 2014) (internal quotations and citations

omitted). “However, the test has an objective component in

that while protecting naive consumers, the standard also

prevents liability for bizarre or idiosyncratic

interpretations of collection notices by preserving a

quotient of reasonableness.” Id. at 1259. And it is presumed

“that the consumer possesses a rudimentary amount of

information about the world and a willingness to read the

communication with some care.” Edstrom-Smith v. Kass Shuler,

P.A., 680 F. App’x 813, 814 (11th Cir. 2017) (internal

quotations and citations omitted).

1. Plaintiff’s Section 1692e Claim

Wright alleges that the May 8, 2019, letter violates

Section 1692e because it is “open to more than one reasonable

interpretation, at least one of which is inaccurate” and

violates Section 1692e(10) by making a false and misleading

representation. (Doc. # 1 at ¶ 46). According to Wright, the

letter’s credit-reporting language “scar[es] Plaintiff into

making payment immediately,” “is threatening to the consumer

and coerces payment,” “is deceptive and misleading, because

it states that the credit report will have a negative impact

if the Defendant ARR does not hear from the consumer,” and is

“confusing, threatening, . . . ominous . . . [and]

frightening.” (Id. at ¶¶ 34-39).

The parties do not devote any significant part of their

briefing to the Section 1692e issue, and so the Court will

analyze the claim without such input. The complaint makes

clear that the credit-reporting language is at the heart of

both Wright’s Section 1692e and Section 1692g claim. See (Doc.

# 1 at ¶¶ 34-40). Again, the May 8 letter stated: “Please be

advised that our client is a credit reporting client. Your

credit report may have a negative impact if we do not hear

from you.” (Doc. # 1-1).

The Court fails to discern how this language is false,

deceptive, or misleading. Wright does not allege that

Defendants would not, in fact, potentially report non-payment

to credit reporting agencies or that consumers’ credit

reports would not be impacted by such non-payment. See

Belichenko v. Gem Recovery Sys., No. 17-cv-01731 (ERK) (ST),

2017 WL 6558499, at *4 (E.D.N.Y. Dec. 22, 2017) (finding that

letter’s bad-credit language did not violate Section 1692e

where the statement “has only one meaning, and Plaintiff has

proffered no evidence that it is inaccurate”).

Courts evaluate alleged violations of Section 1692e(10)

under the “least sophisticated consumer” standard. Gause v.

Med. Bus. Consultants, Inc., 424 F. Supp. 3d 1175, 1205 (M.D.

Fla. 2019). In general, the question of whether the least

sophisticated consumer would be confused or misled by a debt

collector’s communication is one for the jury. Reyes v.

Webcollex, LLC, No. 2:19-cv-153-FtM-29MRM, 2020 WL 619097, at

*4 (M.D. Fla. Feb. 10, 2020). But whether a plaintiff has

plausibly alleged that a defendant’s conduct violates the

least sophisticated consumer standard is a legal question for

the Court. Id.

Here, Wright has failed to plausibly allege that the

least sophisticated consumer would be confused, misled, or

deceived by the letter’s negative-credit-reporting language.

Compare Gause, 424 F. Supp. 3d at 1207 (accepting allegations

as true that debt collector’s assertions in communication to

debtor that it intended to report consumer’s debt to multiple

credit bureaus were actually false and, thus, deceptive means

to collect a debt). Thus, Count I is dismissed without

prejudice. The Court will grant Wright leave to amend this

claim.

2. Plaintiff’s Section 1692g Claim

Wright alleges that Defendants violated Section 1692g by

“threatening negative credit reporting, which overshadows the

[notice] language and coerces the consumer not to exert its

rights under the FDCPA.” (Doc. # 1 at ¶ 51). As an initial

matter, the parties appear to agree that whether Defendants

are liable under Section 1692g(b) is a question of law for

the Court to decide. (Doc. # 12 at 4; Doc. # 25 at 21-22).

See McCray v. Deitsch & Wright, P.A., 356 F. Supp. 3d 1358,

1362 (M.D. Fla. 2019) (citing Shimek v. Weissman, Nowack,

Curry & Wilco, P.C., 323 F. Supp. 2d 1344, 1349 (N.D. Ga.

2003) (“Although the Eleventh Circuit has not considered the

issue, this Court agrees with the Second, Third, and Ninth

Circuits that the determination of whether language

overshadows the validation notice is a question of law.”)).

“[T]he Eleventh Circuit has not yet addressed FDCPA

violations under Section 1692g(b), and therefore, has not yet

defined what communications would ‘overshadow or be

inconsistent with the disclosure of the consumer’s right to

dispute the debt.’” McCray, 343 F. Supp. 3d at 1215; Zevon v.

Balanced Healthcare Receivables, LLC, No. 6:19-cv-1937-Orl-

37DCI, 2020 WL 4188040, at *3 (M.D. Fla. Jan. 7, 2020)(“The

Eleventh Circuit has not said what constitutes overshadowing

under 15 U.S.C. § 1692g(b).”).

A recent opinion from a court within this District

provides a helpful overview of the state of the law outside

of this Circuit:

The Second Circuit explained that a collection

activity “overshadows or contradicts the validation

notice ‘if it would make the least sophisticated

consumer uncertain as to her rights.’” Ellis v.

Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.

2010). The Third Circuit considers the physical

characteristics of the letter and has held that if

the [Section] 1692g notice is provided in the same

font, size, and color as the rest of the letter and

is on the front page, the notice is not

overshadowed. Wilson v. Quadramed Corp., 225 F.3d

350, 356 (3d Cir. 2000), as amended (Sept. 7, 2000).

Similarly, the First Circuit has explained that,

“Typically, however, overshadowing is based upon

the visual characteristics of a collection letter,

such as when a letter demands payment in large,

attention-grabbing type and relegates the

validation notice to fine or otherwise hard-to-read

print.” Pollard v. Law Office of Mandy L.

Spaulding, 766 F.3d 98, 104 (1st Cir. 2014). And

the Seventh Circuit held that a statement warning

that a creditor had the right to pursue legal action

in an initial communication did not violate

[Section] 1692g(b); instead it merely alerted the

consumer to the possible repercussions faced for

failing to pay. Zemeckis v. Glob. Credit &

Collection Corp., 679 F.3d 632, 637 (7th Cir.

2012).

Huyghue v. Shafritz & Assocs., P.A., No. 5:18-cv-29-Oc-30PRL,

2018 WL 7457827, at *4–5 (M.D. Fla. Apr. 12, 2018) (granting

defendant’s motion to dismiss because plaintiff had failed to

state a claim for violation of Section 1692g). The Huyghue

court also relied on a case that Defendants lean on: McMurray

v. ProCollect, Inc., 687 F.3d 665, 671 (5th Cir. 2012).

In that case, the Fifth Circuit considered a debt

collection letter (1) that placed language warning debtors

that a failure to pay could have a negative effect on their

credit significantly higher in the letter than the

statutorily required 30-day validation language and (2) where

the “threatening” language possessed different physical

attributes from the notice language, and concluded that the

letter did not violate Section 1692g(b). Id. at 667-68. The

Fifth Circuit analyzed the letter as follows:

The supposed threat falls in the category of

“letters that encourage debtors to pay their debts

by informing them of the possible negative

consequences of failing to pay,” words that do not

overshadow the required notice language. This is

because “one way to encourage someone with a true

dispute to come forward and resolve that dispute is

to inform him of the possible negative consequences

of his continued inaction.” “Not only does this

encouragement promote payment of valid debts, it

also promotes disclosing genuine claims of invalid

debts[.]” “Promoting final resolution of such

matters, either way, is inherently beneficial.” The

letter in this case essentially provided such

warnings and nothing more. Thus, the notice

language in [the defendant’s] letter is not

overshadowed by the letter’s bad-credit warnings.

Id. at 671 (quoting Durkin v. Equifax Check Servs., Inc., 406

F.3d 410, 417-18 (7th Cir. 2005)).

After careful consideration of the collection letter

here and the relevant case law, this Court agrees with the

thoughtful reasoning in McMurray and Huyghue. First, Wright

has failed to plead any physical attribute of the credit-

warning language in the May 8 letter that overshadows the

notice language, and the Court’s review of the letter

demonstrates that it does not. The credit-warning language

and the notice language are both on the front page of the May

8 letter, in the same size type and same font, and the credit-

warning language is in a regular font, while the notice

language is included in bold font. See Huyghue, 2018 WL

7457827, at *5 (“The warning and the notice are the same font,

size, and color, and both are on the front page of the

letter.”); see also Pollard, 766 F.3d at 104 (looking to a

letter’s ”visual characteristics” in making the overshadowing

determination); Wilson, 225 F.3d at 356 (same).

Second, the warning does not overshadow the notice

because, as the Fifth and Second Circuits have held, such

language merely informs the debtor about the possible

negative consequences of failing to pay a debt and, thus,

would not make the least sophisticated consumer uncertain

about his rights. See Huyghue, 2018 WL 7457827, at *5 (“[T]he

warning in Defendant’s letter merely apprised Plaintiff of

the potential consequences of failing to pay the debt [and]

[t]his language encourages Plaintiff to pay her debt or

dispute it if it was invalid.”); see also McMurray, 687 F.3d

at 671 (explaining that where the “supposed threat falls in

the category of letters that encourage debtors to pay their

debts by informing them of the possible negative consequences

of failing to pay,” such language does not overshadow the

required notice language); Zemeckis, 679 F.3d at 637 (finding

no violation of the FDCPA where language merely alerts

consumer to possible repercussions for failure to pay).

Most of the cases that Wright relies upon in opposition

are distinguishable in that they included language

threatening a consumer with possible negative consequences

for non-payment, combined with some other urgent language of

immediacy regarding when the debt must be paid. Cf. McMurray,

687 F.3d at 671 (finding no FDCPA violation where the letter

provided credit warnings “and nothing more”). For example, in

Yunker v. AllianceOne Receivables Management, Inc., the

collection letter contained language telling the plaintiff

that she was subject to “immediate collection efforts,” that

she should contact the defendant “as soon as possible,” and

that it was the debt collector’s “practice to place

information regarding the debt with the appropriate credit-

reporting agencies.” No. 10-61796, 2011 WL 13239460, at *1-2

(S.D. Fla. July 19, 2011). The court held that, “[o]n balance,

these inconsistent statements are sufficient to establish a

violation of [Section 1692g(b)] as a matter of law.” Id. at

*5; see also Vaughn v. CSC Credit Servs., Inc., No. 93-cv-

4151, 1995 WL 51402 (N.D. Ill. Feb. 3, 1995) (holding that

the collection letter’s demand for immediate payment coupled

with a threat to report the debtor to the credit bureau

overshadowed or contradicted the notice requirement). A court

in the Middle District of Florida recently relied on Yunker

in concluding that a defendant was not entitled to judgment

as a matter of law on the plaintiff’s Section 1692g claim

where the collection notice indicated that the plaintiff

should “resolve the matter immediately” by contacting the

defendant to make payment and “the notice advised of (if not

threatened) ‘additional action’ if the [d]efendant did not

‘receive payment promptly.’” McCray, 343 F. Supp. 3d at 1217

(emphases supplied by the court).

Not so here. The letter that ARR sent on May 8 includes

these sentences: “Please be advised that our client is a

credit reporting client. Your credit report may have a

negative impact if we do not hear from you.” Earlier in the

letter, it states that, “To avoid further collection

activity, please remit payment in full of $984.00 directly to

[ARR].” (Doc. # 1-1). The letter then advises the debtor of

multiple ways in which to pay, including by mail, by phone,

or online. (Id.). This language does not direct the debtor to

pay by any date certain, “immediately,” or even “promptly.”

Wright also points to the letter’s request for payment

in full, along with an enclosed payment stub, to argue that

the letter improperly leads the least sophisticated consumer

to believe that “she would have to make payment in full on

the account to avoid ‘a negative impact’ on her credit report,

rather than simply seeking a validation of her debt as she

was entitled to do under [Section] 1692g.” (Doc. # 25 at 10-

11).

But as explained by another Florida district court, “a

debt collector is ‘perfectly free’ to demand payment and

pursue collection efforts . . . within the validation

period. . . . Only if the debtor disputes the debt during the

validation period, must all debt collection activities stop

until the debt collector obtains verification of the debt.”

Decarlo v. McKinnon, No. 13-14324-CIV, 2014 WL 12214345, at

*3 (S.D. Fla. July 31, 2014) (citing Durkin, 406 F.3d at 416;

15 U.S.C. § 1692g) (internal quotation marks omitted).

Furthermore, Wright urges this Court to consider Francis v.

Snyder, 398 F. Supp. 2d 1034 (N.D. Ill. 2005), but the Court

finds that case distinguishable.

In Francis, the letter in question stated that: “If paid

in full to this office, all collection activity will be

stopped. . . . If you contact this office on receipt of this

letter you may qualify for a payment plan. If you do not call,

the balance will be pursued in full, including collection

costs.” Id. at 1037. This language requiring that the consumer

contact the debt collector on receipt or face full collection

efforts is akin to the language of immediacy discussed in the

cases above. The letter here contains no such language.

In conclusion, upon reading the letter at issue in this

case, the least sophisticated consumer would not be misled or

confused into thinking she had to pay the debt immediately or

face adverse credit consequences before her 30-day statutory

validation period expired. See Rafferty v. Retrieval-Masters

Creditors Bureau, Inc., No. 5:17-cv-00426-PGB-PRL, 2019 WL

1026399, at *4 (M.D. Fla. Feb. 15, 2019), report and

recommendation adopted, No. 5:17-cv-426-Oc-40PRL, 2019 WL

1014554 (M.D. Fla. Mar. 4, 2019) (noting that “[t]hreats tend

to overshadow validation notices when they demand action

immediately or within thirty days, in contradiction of the

validation notice” and recommending that judgment be entered

in favor of defendant because the collection letter did not

demand any action within a specified timeframe inconsistent

with the validation notice); see also Belichenko, 2017 WL

6558499, at *4 (holding that statement in letter regarding

debt collector’s “policy” to report delinquent accounts to

credit agencies did not overshadow the validation notice

because “[a]t no point does it suggest to [the debtor] that

she must take action within any time frame that contradicts

the statutory thirty-day period”) (internal quotation marks

omitted).

For these reasons, the Court concludes as a matter of

law that the language in the May 8 letter warning the consumer

that their “credit report may have a negative impact if we do

not hear from you” did not overshadow the required Section

1692g notice. Therefore, Wright’s Section 1692g claim should

be dismissed with prejudice. See Huyghue, 2018 WL 7457827, at

*5 (granting motion to dismiss with prejudice after making

same finding); see also Silberman v. Miami Dade Transit, 927

F.3d 1123, 1133 (11th Cir. 2019) (explaining that while leave

to amend ought generally to be freely granted, leave to amend

need not be granted when any amendment would be futile).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) The Motion to Dismiss Complaint filed by Defendant

Premium Asset Recovery Corporation (Doc. # 9) is

GRANTED.

(2) The Motion to Dismiss Complaint filed by Defendant AR

Resources, Inc. (Doc. # 12), which motion Defendant

Premium Asset Recovery Corporation has joined, is

GRANTED IN PART and DENIED IN PART.

(3) Count I of the complaint is dismissed without prejudice

and with leave to amend. Count II of the complaint is

dismissed with prejudice.

(4) Plaintiff Javontae Wright may file an amended complaint

within 14 days of the date of this Order. Defendants

will then have 14 days from the filing of the amended

complaint to file their responses thereto.

DONE and ORDERED in Chambers, in Tampa, Florida, this

31st day of July, 2020.

lige 9m. Hunenby ConeeZh

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

28