WAGGETT v. MRS BPO, L.L.C

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JENNIFER WAGGETT, on behalf

1:22-cv-01151-NLH-EAP

of herself and all others

similarly situated

OPINION

Plaintiff,

v.

MRS BPO, LLC

Defendant.

APPEARANCES:

JOSEPH K. JONES

JONES, WOLF & KAPASI, LLC

375 PASSAIC AVENUE

SUITE 100

FAIRFIELD, NJ 07004

Attorneys for Plaintiff JENNIFER WAGGETT

MONICA M. LITTMAN

RICHARD J. PERR

KAUFMAN DOLOWICH VOLUCK LLP

FOUR PENN CENTER

1600 JOHN F. KENNEDY BOULEVARD

SUITE 1030

PHILADELPHIA, PA 19103

Attorneys for Defendant MRS BPO, LLC

HILLMAN, District Judge

This matter comes before the Court by way of a motion for

judgment on the pleadings filed by Defendant MRS BPO, LLC (“MRS

BPO” or “Defendant”) pursuant to Federal Rule of Civil Procedure

12(c) (“Rule 12(c)”). (ECF No. 15). Jennifer Waggett

(“Plaintiff”) opposes the motion. (See ECF No. 18). The Court

has considered the parties’ written submissions and decides this

motion without oral argument pursuant to Federal Rule of Civil

Procedure 78. For the reasons that follow, Defendant’s Motion

for Judgment on the Pleadings will be denied.

BACKGROUND

A. Facts

The instant matter arises out of Plaintiff’s civil action

for alleged violations of the Fair Debt Collection Practices Act

(“FDCPA”). At a date prior to January 13, 2022,1 Plaintiff

incurred a financial obligation to non-party GM Financial in

connection with a sale or lease of a motor vehicle (“the debt”).

(ECF No. 1 at 5, ¶ 18). Additionally, on or before January 13,

2022, GM Financial referred the debt to MRS BPO for collection.

(Id. at 6, ¶ 26). At the time of GM Financial’s referral of the

debt to MRS BPO, the debt was in default and had been in default

since August 2017. (Id. at ¶ 27-28). The statute of

limitations for legal action to collect the debt expired as of

August 2021.2 (Id. at ¶ 33).

1 Plaintiff brought to the Court’s attention that the original

Complaint incorrectly referred to the date of the debt

collection letter as “February 4, 2022.” (ECF No. 18 at 1 n.1).

The correct date is used in this Opinion.

2 Under both Pennsylvania and New Jersey law, the statute of

limitations for actions sounding in contract for the sale of

goods is four years. See 42 Pa.C.S. § 5525(a); N.J. Stat. §

12A:2-725(1). Plaintiff’s complaint alleges that the debt to GM

Financial was in connection with the sale or lease of a motor

On or around January 13, 2022, Defendant sent a letter in

connection with collection of the debt to Plaintiff (“the

letter”). (Id. at ¶ 30). Upon receipt of the letter, Plaintiff

read it in its entirety. (Id. at ¶ 34). The letter provided

the following information:

Dear JENNIFER WAGGETT,

We recognize that a possible hardship or pitfall may

have prevented you from satisfying your obligation. We

are presenting three options to resolve your balance.

We are not obligated to renew this offer.

Option 1: A monthly payment plan on the full balance of

the account.

Option 2: You pay $1,897.20 in ONE PAYMENT to be received

in this office on or before 01/29/2022.

Option 3: You make TWO PAYMENTS of $1,198.23 each. The

first payment to be received in this office on or before

01/29/2022 and the second payment on or before

02/24/2022.

Payment may be made by calling 800-949-3249, mailing to

the above address or by using our online payment website

at .... When you call please let our representative

vehicle. (ECF No. 1 at 6, ¶ 23). The precise nature of the

source of the debt is not clear to the Court from the pleadings,

but Plaintiff’s Brief in Opposition to the instant motion

alleges that the debt involved a GM Financial credit card, which

could only be used in connection with the lease or sale of a GM

motor vehicle. (ECF No. 18 at 7, Note 3). Under the applicable

state law of New Jersey, single-store credit cards are subject

to a four-year statute of limitations for debt collection.

Santiago v. Cavalry Portfolio Servs., LLC, No. 15-8332, 2018

U.S. Dist. LEXIS 94773 (D.N.J. June 5, 2018) (citing Midland

Funding LLC v. Thiel, 446 N.J. Super. 537 (Super. Ct. App. Div.

2016)). The parties do not appear to dispute that any lawsuit

to collect the debt incurred by Plaintiff would have been time-

barred by the time Defendant sent the collection letter at issue

in this case.

know that you have received the GM FINANCIAL Option

Letter.

Sincerely,

MRS BPO, LLC

(ECF No. 1 at 13 of 14, Ex. A) (website address omitted).

The letter also states “GM FINANCIAL” as the “CREDITOR” and

states an “ACCOUNT BALANCE” in the amount of $4,992.61 and that

“[t]ax time is a great time to put issues like this behind you.

Consider using any possible tax refund you may receive to

satisfy your outstanding obligation.” (Id.). At the bottom of

the page, the letter states: “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.).

B. Procedural History

On March 2, 2022, Plaintiff filed the instant Complaint

against Defendant with this Court, alleging violations of the

FDCPA. 15 U.S.C. § 1692 et seq. (ECF No. 1). Plaintiff

alleges that Defendant engaged in false, deceptive, or

misleading representations in violation of 15 U.S.C. § 1692(e),

namely § 1692(e)(2)(A), § 1692(e)(5), and § 1692(e)(10) when

Defendant sent Plaintiff the letter that offered payment options

for a time-barred debt. (Id. at 9, ¶¶ 54-56). On April 11,

2022, Defendant filed an Answer to Plaintiff’s Complaint. (ECF

No. 6).

This matter comes before the Court by way of Defendant’s

Motion for Judgment on the Pleadings, filed on June 3, 2022.

(ECF No. 15). On June 19, 2022, Plaintiff filed a Memorandum in

Opposition to Defendant’s Motion for Judgment on the Pleadings.

(ECF No. 18). On July 11, 2022, Defendant filed a reply brief

in support of its motion. (ECF No. 22). Thus, the matter is

now ripe for adjudication.

DISCUSSION

Plaintiff alleges that Defendant violated Sections

1692e(2)(A), 1692e(5), and 1692e(10) of the FDCPA. 15 U.S.C.

§ 1692e. Defendant moves for judgment on the pleadings pursuant

to Rule 12(c), asserting that Plaintiff’s claims fail as a

matter of law because the letter did not use language that could

lead Plaintiff into thinking that the debt could be legally

enforced, when in fact it was time-barred.

A. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction over this

matter pursuant to 28 U.S.C § 1331 and 15 U.S.C. § 1692k(d).

B. Legal Standard of a Motion for Judgment on the Pleadings and a

Motion to Dismiss for Failure to State a Claim

Under Rule 12(c), a party may move for judgment on the

pleadings after the pleadings are closed, but early enough not

to delay trial. F. R. Civ. P. 12(c); Turbe v. Gov’t of V.I.,

938 F.2d 427, 428 (3d Cir. 1991). Under Rule 12(c), the movant

must clearly establish that “no material issue of fact remains

to be resolved and that he is entitled to judgment as a matter

of law.” Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.

2008) (citation and internal quotation marks omitted).

In analyzing a Rule 12(c) motion, a court applies the same

legal standards as applicable to a motion filed pursuant to

Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”)

because Federal Rule of Civil Procedure 12(h)(2) provides that a

defense of failure to state a claim upon which relief can be

granted may also be made by a motion for judgment on the

pleadings. Turbe, 938 F.2d at 428. Consequently, the Court

must accept all well-pleaded allegations in the Complaint as

true and view them in the light most favorable to the plaintiff.

Jones v. Davidson, 666 Fed. App’x 143, 146 (3d Cir. 2016)

(citing Warren Gen Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011). It is well settled that a pleading is sufficient if it

contains “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Pursuant to a Rule 12(b)(6) motion, a complaint “does not

need detailed factual allegations, a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do ....” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in

original) (citations omitted) (first citing Conley v. Gibson,

355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry &

Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then

citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“‘not whether a plaintiff will ultimately prevail but whether

the claimant is entitled to offer evidence to support the

claim.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8

(2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974));

see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail-

in-the-coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Federal Rule of Civil Procedure 56. See Fed.

R. Civ. P. 12(b).

C. Analysis

a. FDCPA Standards

The FDCPA provides a remedy for consumers who have been

subjected to abusive, deceptive, or unfair debt collection

practices by debt collectors. Piper v. Portnoff Law Assocs.,

396 F.3d 227, 232 (3d Cir. 2005) (citing Pollice v. Nat’l Tax

Funding, L.P., 225 F.3d 379, 400 (3d Cir. 2000)). To prevail on

an FDCPA claim, a plaintiff must demonstrate that (1) she is a

consumer, (2) the defendant is a debt collector, (3) the

defendant's challenged practice involves an attempt to collect a

“debt” as the Act defines it, and (4) the defendant has violated

a provision of the FDCPA in attempting to collect the debt.

Tatis v. Allied Interstate, LLC, 882 F.3d 422, 427 (3d Cir.

2018).

Under the FDCPA, the term “consumer” means any natural

person obligated or allegedly obligated to pay any debt. Piper,

396 F.3d at 232 (citing 15 U.S.C. § 1692a(3)). The FDCPA

defines “debt” as “any obligation of a consumer to pay money

arising out of a transaction in which the money, property,

insurance, or services which are the subject of the transaction

are primarily for personal, family, or household purposes,

whether or not such obligation has been reduced to judgment.”

Id. (citing 15 U.S.C. § 1692a(5)). A “debt collector” is

defined 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.” Id. (citing 15 U.S.C. § 1692a(6)).

Here, Plaintiff alleges that she incurred a debt to GM

Financial, thus qualifying her as a consumer under the FDCPA

definition. (ECF No. 1 at 5, ¶ 18). Plaintiff also alleges

that the debt to GM Financial arose out of a transaction in

connection with the sale or lease of a motor vehicle, primarily

for personal, family, or household purposes, thus qualifying her

financial obligation to GM Financial as a debt under the FDCPA

definition. (ECF No. 1 at 5-6, ¶¶ 18-23). Furthermore,

Plaintiff alleges that Defendant uses the instrumentalities of

interstate commerce or the mails to engage in the principal

business of collecting debt and/or to regularly engage in the

collection or attempt to collect debt asserted to be due or owed

to another, and thus the Court concludes that Defendant is a

debt collector satisfying the FDCPA definition.3 (ECF No. 1 at

2, ¶ 9). Finally, Plaintiff alleges that Defendant sent the

January 13, 2022, letter in an attempt to collect on her debt to

3 The Court notes that in its answer, Defendant states that while

at times it may be deemed a debt collector as that term is

defined by the FDCPA, it has insufficient information and

knowledge to either admit or deny that it was a debt collector

in regard to Plaintiff and this matter. (ECF No. 6 at 2, ¶ 8-

9). This is despite the clear language in the letter

identifying Defendant as just that.

GM Financial, which satisfies the third prong of her FDCPA

claim. (ECF No. 1 at 6, ¶ 31).

Therefore, only the fourth prong of Plaintiff’s FDCPA claim

is in dispute: whether Defendant’s letter violated a provision

of the FDCPA.

b. § 1692e Claims

Plaintiff alleges that Defendant’s letter violated several

provisions of the FDCPA, in pertinent part:

1. § 1692e(2)(A), which prohibits the false

representation of the character, amount, or legal

status of any debt;

2. § 1692e(5), which prohibits a debt collector from

making threats to take any action that cannot legally

be taken or that is not intended to be taken; and

3. § 1692e(10), which prohibits the use of any false

representation or deceptive means to collect or

attempt to collect any debt or to obtain information

concerning a consumer.

To determine whether a particular practice or action

violates the FDCPA, a court must analyze the debt collector’s

communication from the perspective of the “least sophisticated

debtor.” Knight v. Midland Credit Mgmt., 755 Fed. App’x 170,

173 (3d Cir. 2018). “Although the least sophisticated debtor

standard is lower than the standard of a reasonable debtor, it

preserves a quotient of reasonableness and presumes a basic

level of understanding and willingness to read with care.”

Jensen v. Pressler & Pressler, 791 F.3d 413, 418-19 (3d Cir.

2015) (internal citations and quotations omitted). In doing so,

the standard “gives effect to the Act’s intent to protect the

gullible as well as the shrewd.” Blair v. Fed. Pac. Credit Co.,

563 F. Supp. 3d 347, 354 (D.N.J. 2021) (quoting Jensen, 791 F.3d

at 418).

Although debt collectors cannot take legal action to

enforce time-barred debts, they are allowed to request voluntary

repayment of the same debt under the FDCPA. See Huertas v.

Galaxy Asset Mgmt., 641 F.3d 28, 32-33 (3d Cir. 2011);

Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294, 299 (3d

Cir. 2008); Sullivan v. Allied Interstate, LLC, No. 16-203, 2016

U.S. Dist. LEXIS 145451, *17 (W.D. Pa. Oct. 18, 2016). In their

efforts to collect time-barred debts, however, debt collectors

cannot send communications “when read in their entirety, . . .

deceive or mislead the least-sophisticated debtor into believing

that she has a legal obligation to pay the time-barred debt.”

Tatis v. Allied Interstate, LLC, 882 F.3d 422, 430 (3d Cir.

2018).

However, the Third Circuit in Tatis declined to impose any

affirmative requirements on debt collectors regarding language

they must use, leaving courts to analyze such letters

holistically from the perspective of the least sophisticated

debtor. Id. Therefore, the Court will analyze whether the

language of the letter sent by Defendant to Plaintiff, in this

case, could lead the least sophisticated debtor to believe that

she had a legal obligation to pay the debt.

i. Status of the Debt

The Court’s analysis of Defendant’s argument that

Plaintiff’s claims fail as a matter of law hinges on whether the

precise language used in the letter misleads or deceives debtors

into believing they have a legal obligation to repay time-barred

debts, even when the letters do not threaten legal action.

Here, the question is whether the phrases “your obligation” and

“your outstanding obligation,” when viewed in the context of the

letter as a whole, connote Defendant’s ability or intention to

enforce the debt in court to the least sophisticated debtor.

The Third Circuit has provided some insight into the analysis a

court should use to determine whether certain phrases can be

considered implicitly litigious or sufficiently misleading and

therefore violate the relevant parts of the FDCPA.

In Tatis, the Third Circuit held that a debt collector’s

use of the word “settlement offer” in a letter sent to a

consumer could serve as the basis for an FDCPA claim, even where

said letter did not explicitly threaten litigation to collect on

a time-barred debt. Tatis, 882 F.3d at 425. However, “standing

alone, settlement offers and attempts to obtain voluntary

repayments of stale debts do not necessarily constitute

deceptive or misleading practices.” Id. at 430. Tatis further

declined to “impose any specific mandates on the language debt

collectors must use, such as requiring them to explicitly

disclose that the statute of limitations has run.” Id.

Tatis instructs the Court to closely scrutinize the

language used in a collection letter and determine whether it

uses words with litigious connotations, or whether such words

are sufficiently misleading or deceptive to a debtor, inducing a

belief that they have a legal obligation to repay time-barred

debts. See id. at 428-29. Following Tatis, this approach has

been employed in other decisions within the District Courts of

the Third Circuit. See generally Blair v. Fed. Pac. Credit Co.,

LLC, 563 F. Supp. 3d 347 (D.N.J. 2021); Norman v. Allied

Interstate, LLC, 310 F. Supp. 3d 509 (E.D. Pa. 2018); Rozario v.

Admin Recovery, LLC, No. 20-801, 2020 U.S. Dist. LEXIS 128112

(D.N.J. July 21, 2020).

In this District, Chief Judge Wolfson applied Tatis when

she dismissed an FDCPA claim on the grounds, in part, that the

words “close this account” could not lead the least

sophisticated debtor to believe that a letter implicitly

threatened litigation or enforcement of a time-barred debt.

Rozario, 2020 U.S. Dist. LEXIS 128112, at *6. Chief Judge

Wolfson explicitly noted that, unlike the word “settlement,”

“‘close this account’ does not, in any other context, relate to

litigation.” Id. at *7.

Similarly, in Blair, another judge in this District

dismissed an FDCPA claim, holding that a collection letter’s use

of the phrases “satisfy” and “satisfy your account” was

insufficient to establish a plausible § 1692e violation. Blair,

563 F. Supp. 3d at 358. Judge McNulty examined the definition

of “satisfy” and “satisfaction” in the Oxford English Dictionary

and Black’s Law Dictionary, finding that neither source

contained a definition that mentioned litigation. Id. Judge

McNulty noted that “‘satisfy’ seem[ed] a fair word to use where

a debt continues to exist despite the inability to legally

enforce it, and the message is that it can be discharged for

some amount.” Id.

In the instant matter, in Defendant’s letter to Plaintiff,

the phrase “satisfy your obligation”, falls in between the poles

of clearly permissible and clearly impermissible language in

this District’s and Circuit’s case law. The word “obligation”

has appeared in letters that have been found to violate the

FDCPA, but no court within this Circuit has analyzed a letter

that uses the word “obligation” without the word “settlement,”

(a word deemed clearly misleading as to the legal status of the

debt), also present. See e.g., Norman v. Allied Interstate,

LLC, 310 F. Supp. 3d 509, 512 (E.D. Pa. 2018) (reciting that the

letter at issue used the terms “satisfy your obligation” and

“discuss potential settlement options”). “Obligation” on its

face does not connote the same overt implication of litigation

as “settlement,” “settlement offer,” or “settlement options,”

nor does it fall within the genus of administrative or banking

terms such as “close” or “satisfy” an account, which case law

holds is within the boundaries of permissible language under the

FDCPA.

Because no Third Circuit case directly addresses the

permissibility of the word “obligation,” in accordance with the

analytical approach used in Tatis, Rozario, and Blair, this

Court will examine the word “obligation” as it is defined in six

separate dictionaries, as used in Tatis, to discern its

connotations.4 In the view of this Court, contrary to

Defendant’s assertions, the word “obligation” does carry a legal

connotation that could mislead the least sophisticated debtor

when viewed, as set forth below, in the overall context of

Defendant’s letter.

Each of the six dictionary sources examined by the Court

defines the word “obligation,” at least in part, as a binding

4 See Tatis, 882 F.3d at 428 (citing Buchanan v. Northland Group,

Inc., 776 F.3d 393, 399 (6th Cir. 2015)) (listing the six

dictionaries used to examine the word “settlement”: Webster’s

Third New International Dictionary, The Oxford English

Dictionary Online, The American Heritage Dictionary of the

English Language, Wiktionary, Dictionary.com, and Black’s Law

Dictionary). The Court has gathered the definition for

“obligation” in each of these six dictionaries and included the

relevant definitions for the instant analysis.

duty to perform or forbear, and each source explicitly ties this

duty to a form of enforcement.5 Black’s Law Dictionary defines

“obligation” as “a legal or moral duty to do or not do

something... whether the duty is imposed by law, contract,

promise, social relations, courtesy, kindness, or morality.”

Obligation, Black’s Law Dictionary (11th ed. 2019).6 Webster’s

definition is even more explicit in establishing the connection

between the word “obligation” to principles of legal

enforcement: “a bond with a condition annexed and a penalty for

nonfulfillment; ... a duty arising by contract: a legal

liability, 4a: a condition or feeling of being bound legally or

ethically.” Obligation, Webster’s Third New Int’l Dictionary

(1993).7

5 See Jeffrey L. Kirschmeier and Samuel A. Thumma, Scaling the

Lexicon Fortress: The United States Supreme Court’s Use of

Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77,

88 (2010) (explaining that use of dictionaries by Supreme Court

and other courts is more common in types of cases that happen to

be conducive to dictionary use, such as statutory interpretation

cases).

6 Id., note 4 at 108 (noting that the most frequently cited law

dictionary is Black's Law Dictionary).

7 Id., note 4 at 108-9 (explaining that Webster’s Third New

International Dictionary is the most frequently cited general

use dictionary by the Supreme Court). Kirschmeier and Thumma

further state that the frequency of the Supreme Court’s use of

these dictionaries impacts not only the Supreme Court’s

decisions, but also decisions by other courts, noting that “for

example, one recent United States District Court decision relied

upon Webster’s Third New International Dictionary ‘because it is

the source most often relied upon by the Supreme Court for

federal statutory interpretation.’” Id. at 109.

The idea that an obligation is, in at least one commonly

understood way, a legal duty accompanied by a threat of

enforcement for nonfulfillment is repeated in other printed

dictionary sources: “a social, legal, or moral requirement, such

as a duty, contract, or promise, that compels one to follow or

avoid a particular course of action,” Obligation, American

Heritage Dictionary of the English Language (5th ed. 2016); “an

enforced or burdensome task or charge.” Obligation, Oxford

English Dictionary (3d ed. 2004).

Continuing the Tatis approach, the Court has examined

definitions from more common sources that the least

sophisticated debtor could access or would consider

authoritative. Free online dictionaries such as Wiktionary.com

and Dictionary.com provide definitions of “obligation” that

connote nearly identical meanings to those above: a duty to

perform, and a possibility of enforcement or penalty for failure

to comply. These sources define “obligation” as “a social,

legal, or moral requirement, duty, contract, or promise that

compels someone to follow or avoid a particular course of

action.” Obligation, Wiktionary, (Jun. 17, 2022, 8:48 PM),

https://en.wiktionary.org/wiki/obligation. Even more

explicitly, on Dictonary.com, an obligation is defined as “an

agreement enforceable by law.” Obligation, Dictionary.com,

https://www.dictionary.com/browse/obligation (last visited Jul.

14, 2022). Each of the definitions found in these formal and

informal dictionary sources demonstrates that an “obligation” is

commonly defined as a duty with a condition of enforcement that

may be compelled by the law, some even stating that those that

fail to meet such obligation can be penalized.

Defendants contend that the word “obligation” carries no

explicit or implicit threat of litigation. (ECF No. 22 at 3).

Contrary to Defendant’s conclusions, the Court considers the

word “obligation” to have more litigious connotations embedded

in at least one of its commonly understood definitions, and

therefore is closer to “settlement” and other impermissible

language than it is to permissible language such as “satisfy.”

The legal connotations in the definitions of “obligation” are

more than simply references to “legal requirements” and “law” —

these references are specific to enforcement. Analysis of each

dictionary source indicates that “obligation” implies a debt,

which an ordinary person would assume could be collected and

enforced absent an agreement between the creditor and debtor to

the contrary. It is more than plausible, and even likely, that

the least sophisticated debtor would understand that their

“obligation” is a duty to pay that a creditor could enforce in

court through the commencement of litigation.

The Court recognizes that the definitions cited above

encompass a legal duty “or” a moral one and that the former

connotes enforcement in a court of law and the latter does not.

But under the FDCPA the words chosen by the debt collector are

viewed through the eyes of the least sophisticated debtor who

should not have to parse out which of the two definitions the

debt collector intended. So long as one definition, as it does

here, falls squarely within the concept of an enforceable

promise the least sophisticated debtor test is satisfied.

Defendant heavily relies upon Blair’s holding to justify

its disavowal of the litigious connotations of “obligation,”

arguing that the term “satisfy” had more legal focused

definitions and yet was considered a “fair word to use where a

debt continues to exist despite the inability to legally enforce

it[.]” (Id.) (citing Blair 563 F. Supp. 3d at 358). However,

the debt collection letter in Blair explicitly stated that

because of the age of the debt, the debtor could not be sued for

it. Id. at 352. The court in Blair stated that this was the

“key difference” between its case and Tatis. Id. at 359. Given

that the letter at issue in this case did not acknowledge the

debt as time-barred whatsoever, the legal connotations of the

term “obligation” is not ameliorated by such a disclaimer.

Defendant also omits Judge McNulty’s comments regarding the

precarious nature of the decision: “I cannot close without

observing that this Letter comes close to the line. It seems

designed to be exactly as unclear as is legally permissible ...

be that as it may, the FDCPA does not require creditors to act

as guardians or give debtors good advice; it is primarily a

prohibition aimed at statements that would mislead debtors.”

Id. at 360 (emphasis in original).

This view that a fair interpretation of the word

“obligation” connotes a legally enforceable promise is bolstered

by Congress’ choice of the same word in defining the type of

legal relationship the FDCPA was intended to regulate. Although

this Court is interpreting the Defendant’s letter and not the

statute itself, Congress’ use of the same word in the statutory

text is telling. As set forth above, the FDCPA requires an

attempt to collect a “debt” which it defines as “any obligation

of a consumer to pay money arising out of a transaction

[involving a] . . . . transaction . . . . primarily for

personal, family, or household purposes, whether or not such

obligation has been reduced to judgment.” 15 U.S.C. §

1692a(5)). Clearly, Congress employed the plain and ordinary

meaning of the word “obligation” – a legal duty arising from

mutual promises to pay on the one hand and to perform services

or provide goods on the other. And moreover, one susceptible to

being “reduced to judgement.” Id. It would truly be ironic

that Congress would use that word to define the reach of the

statute only for a court to interpret a regulated person’s use

of the same word in such a narrow or more nuanced way as to

cabin the same remedial statute.

The notion that “obligation” conveys a contract, or a

mutually enforceable promise, is also reinforced by the

Defendant’s use of the sentence “We are not obligated to renew

this offer[]” immediately following the use of the word

“obligation” to describe the Plaintiff’s duty. By excluding one

obligation – a duty to offer additional offers of compromise -

the phrase suggests the existence of others and therefore a

contractual relationship with a concomitant right of action for

breach. Moreover, the phrase telegraphs a not so veiled threat

consistent with a right of enforcement. A least sophisticated

debtor would reasonably construe the phrase “We are not

obligated to renew this offer[]” within the context of the

letter as a whole as “Act now to take our offers of compromise

before we make our next move.” This inherent threat of further

action in the face of failing to select one of the three payment

options is inconsistent with a moral obligation or voluntary

decision to pay a time-barred debt and wholly consistent with

the debt collector retaining a right of action to compel

payment. Unlike Blair, nowhere is this fourth option not to pay

the debt at all without legal consequence made clear despite the

Defendant’s foreknowledge that it can take no action if that

course of action was chosen by the debtor. Instead, the not so

subtle message “this is your last chance” would plainly mislead

the least sophisticated debtor.

In sum, on its face and without the benefit of discovery,

the letter when viewed in its entirety appears to be a document

carefully crafted to push the envelope of acceptable language

under the FDCPA while maximizing the chance of collecting from

debtors. The FDCPA was enacted to prevent such misleading

tactics. Therefore, Plaintiff has alleged sufficient facts that

state a claim for relief which is plausible on its face; that

is, that the use of the word “obligation” in the context of the

letter as a whole could mislead the least sophisticated debtor

to believe that Defendant would seek to judicially enforce

collection on her time-barred debt if the three proffered

payment options were rejected.

CONCLUSION

For the foregoing reasons, Defendant’s Rule 12(c) Motion

for Judgment on the Pleadings will be denied. An appropriate

order will be entered.

Date: August 11, 2022 _s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.