Opinion

Weiss v. Sequium Asset Solutions, LLC

Court
District Court, E.D. New York
Filed
Apr 7, 2022
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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YITZCHOK WEISS,

Plaintiff, MEMORANDUM & ORDER

21-CV-218(EK)(TAM)

-against-

SEQUIUM ASSET SOLUTIONS, LLC; LVNV

Funding LLC; and John Does 1-25,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Yitzchok Weiss claims that a letter he

received from Sequium Asset Solutions, LLC violated the Fair

Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p. The

named defendants move for judgment on the pleadings. For the

reasons stated below, Defendants’ motion is granted.

I. Background

In the complaint, Weiss states that he “allegedly”

incurred a debt to HSBC Bank that became the subject of a 2012

court judgment against him in the amount of $12,777.90. Compl.

¶¶ 23, 33, ECF No. 1.1 HSBC is not a party here; Weiss alleges

that the bank “sold or assigned the alleged [] debt” to

defendant LVNV Funding. Id. ¶ 27. The facts below are taken

1 All page numbers to citations to record documents refer to ECF

pagination rather than native pagination.

from the complaint and assumed to be true for purposes of the

instant motion.

Defendant Sequium Asset Solutions is a “debt

collector” within the FDCPA definition. On December 8, 2020,

Sequium sent Weiss a letter on LVNV’s behalf. Id. ¶ 31. The

letter noted a “Total Due” of $12,777.90 — the amount of the

2012 judgment — and set out a settlement offer: the debt would

be extinguished if Weiss paid sixty percent of that amount. See

Debt Notice, Exhibit A to Compl., ECF No. 1-1. Sequium’s letter

did not provide a deadline by which Weiss had to accept this

offer or otherwise provide that the offer would expire. Id.

Weiss maintains that the “Total Due” field in

Sequium’s letter misstated the amount of his debt. He claims

the amount he owed was substantially higher, because interest

had been accruing since 2012 at nine percent annually by

operation of New York law. See Compl. ¶ 38. He argues that the

letter violated the FDCPA because it failed to include interest

in the total due or state explicitly that statutory interest

would be waived. Id. ¶¶ 34-40; see also id. ¶¶ 58-72 (alleging

violations of Sections 1692e, 1692f, and 1692g of the FDCPA).

Weiss seeks certification of a class of similarly

situated consumers.2 Defendants answered the complaint (and then

amended their answer) but did not move for dismissal under

Federal Rule of Civil Procedure 12(b)(6). They now move for

judgment on the pleadings pursuant to Rule 12(c).

II. Legal Standard

A. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c) is reviewed under the same

standard as a motion to dismiss under Rule 12(b)(6). Bank of

New York v. First Millennium, 607 F.3d 905, 922 (2d Cir. 2010).3

In resolving a motion for judgment on the pleadings, the court

“will accept all factual allegations in the complaint as true

and draw all reasonable inferences in [plaintiff’s] favor.”

Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). “To survive

a Rule 12(c) motion, however, [plaintiff’s] complaint must

contain sufficient factual matter, accepted as true, to state a

claim of relief that is plausible on its face.” Id. The court

is “not bound to accept as true legal conclusions couched as

2 In addition to Sequium and LVNV, the complaint names “John Does 1-25”

as defendants. Weiss intends to identify those entities in discovery, which

was stayed, on consent, pending resolution of this motion.

3 Unless otherwise noted, when quoting judicial decisions this order

omits all alterations, citations, and internal quotation marks.

factual allegations.” LaFaro v. New York Cardiothoracic Group,

PLLC, 570 F.3d 471, 476–77 (2d Cir. 2009).

B. The FDCPA and the Least Sophisticated Consumer Standard

The FDCPA is a consumer protection statute intended to

“eliminate abusive debt collection practices.” 15 U.S.C.

§ 1692. Section 1692e prohibits the use of “false, deceptive,

or misleading representation or means in connection with”

collecting a debt. A representation can be deceptive or

misleading under section 1692e if it is “open to more than one

reasonable interpretation, at least one of which is inaccurate.”

Easterling v. Collecto, Inc., 692 F.3d 229, 233 (2d Cir. 2012).

Section 1692f prohibits the use of “unfair or

unconscionable means” in collecting a debt. “Although the FDCPA

leaves the term ‘unfair or unconscionable means’ undefined, [the

Second Circuit has] held that the term refers to practices that

are ‘shockingly unjust or unfair, or affronting the sense of

justice, decency, or reasonableness.’” Arias v. Gutman, Mintz,

Baker & Sonnenfeldt LLP, 875 F.3d 128, 135 (2d Cir. 2017). The

LSC standard is used to determine whether a practice is unfair

or unconscionable. Id.

Section 1692g requires a debt collector to “send a

written notice, within five days of its initial communication

with the consumer, stating the amount of the debt and the name

of the creditor to whom the debt is owed.” Jacobson v.

Healthcare Financial Services, Inc., 516 F.3d 85, 91 (2d Cir.

2008). The statute affords a right of action for cases where,

as alleged here, the notice misstates the amount of the debt.

15 U.S.C. § 1692g(a)(1); see also Carlin v. Davidson Fink LLP,

852 F.3d 207, 210 (2d Cir. 2017).

In FDCPA cases under all three sections, courts read

debt-collection letters from the perspective of the “least

sophisticated consumer” (“LSC”). See Russell v. Equifax A.R.S.,

74 F.3d 30, 34 (2d Cir. 1996). The LSC could misunderstand a

collection letter if it is “reasonably susceptible to an

inaccurate reading.” DeSantis v. Computer Credit, Inc., 269

F.3d 159, 161 (2d Cir. 2001).

Still, in applying the LSC standard, “courts have

carefully preserved the concept of reasonableness.” Clomon v.

Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993). “The FDCPA does

not extend to every bizarre or idiosyncratic interpretation by a

debtor of a creditor’s notice.” Schweizer v. Trans Union Corp.,

136 F.3d 233, 237 (2d Cir. 1998). Instead, courts may assume

the LSC makes “reasonable and logical deductions and

inferences,” Dewees v. Legal Serv., LLC, 506 F. Supp. 2d 128,

132 (E.D.N.Y. 2007), and that he will read the letter from start

to finish. See McStay v. I.C. Sys., Inc., 308 F.3d 188, 191 (2d

Cir. 2002).

III. Discussion

This case concerns the extent to which debt collectors

must disclose the effect of interest on a consumer’s account

balance to ensure that a collection notice is not false,

deceptive or misleading under the FDCPA. The Second Circuit has

addressed this subject multiple times in recent years.

In Avila v. Riexinger & Associates, LLC, the Court of

Appeals held that Section 1692e requires debt collectors,

generally speaking, “when they notify consumers of their account

balance, to disclose that the balance may increase due to

interest and fees.” 817 F.3d 72, 76 (2d Cir. 2016). This rule

serves to protect consumers who, absent clarity about the

interest clock, “may hold the reasonable but mistaken belief

that timely payment will satisfy their debts.” Id. The Avila

court qualified its directive, however, by stating that no

liability would obtain when a collection notice “clearly states

that the holder of the debt will accept payment of the amount

set forth in full satisfaction of the debt if payment is made by

a specified date.” Id. at 77.

Two years later, the Second Circuit held that when no

interest is accruing, a notice does not have to say so

explicitly to avoid liability under Section 1692e. Taylor v.

Financial Recovery Services, Inc., 886 F.3d 212, 214 (2d Cir.

2018). The defendant in Taylor “produced unrebutted evidence”

in discovery that no interest had accrued. The court reasoned

that under those circumstances, the risk that Avila identified

is absent (namely, that a consumer will pay the amount listed as

due, only to discover later that he still owes a debt). Id.

Most recently, in Cortez v. Foster & Garbus, LLP, the

Court of Appeals clarified that a debt notice offering to settle

for a fixed amount does not have to state, in addition, that the

interest clock is running (even if that is indeed the case).

999 F.3d 151, 155 (2d Cir. 2021). The court wrote:

As with debtors faced with a collection notice for a

static debt, who are not prejudicially misled by the

collector’s failure to disclose that interest is not

accruing, debtors faced with a settlement offer are not

misled by the failure to disclose that interest is

accruing because in both situations, payment of the

amount indicated in a collection notice would

extinguish the debt.

Id. The instant case precisely presents this latter fact

pattern: Sequium offered to settle the debt for sixty

percent of the amount shown as due and owing. If Weiss had

availed himself of that offer, his “payment . . . would

extinguish the debt,” just as in Cortez. Id.4

Weiss attempts to avoid this clear application of

Cortez by distinguishing Sequium’s letter from the letter at

4 It is irrelevant that the Cortez court was considering interest

accruing from the date of the letter onward, whereas Weiss is talking about

interest accruing prior to the date of the debt-collection notice. Either

way, the settlement offer would (if accepted) render the interest calculation

moot.

issue there. Specifically, he says, Sequium’s letter did not

set out an expiration date for the settlement offer, while the

letter in Cortez did: the debt collector indicated that “we

shall expect” payment by a date specified. Id. at 153. But

Cortez did not establish a bright line rule that every

settlement offer must come with an expiration date. Cortez

referenced the expiration date because the central issue there

was whether a consumer might be confused about the consequences

of paying the settlement amount after that date. Id. at 156.

That is not an issue in this case, precisely because there was

no expiration date in the offer. Indeed, the open-ended offer

from the Defendants was more generous to Weiss than the defined

expiration in Cortez, in that it gave Weiss longer than Mr.

Cortez was afforded to accept the settlement offer.

At oral argument, Weiss’s counsel hypothesized that if

Weiss was inclined to wait a substantial amount of time — like

ten years — before paying the settlement amount, he would not

know whether (or when) the offer had expired. See Transcript of

Oral Argument held on November 15, 2021, 11:10-14, ECF No. 21

(“It’s deceptive in the sense that if they pull back their

offer, when can they pull back their offer . . . . Let’s say

plaintiff thinks that, you know what, I can pay this in ten

years.”). Thus, the LSC might not know what amount to pay.

The complaint does not allege that Weiss himself

experienced this manner of confusion, or even that the least

sophisticated consumer would. In any event, Section 1692e “does

not require that a collection notice anticipate every potential

collateral consequence that could arise in connection with the

payment or non-payment of a debt.” Cortez, 999 F.3d at 156.

This is especially true of potential collateral consequences

that are so esoteric as to arise only if a debtor decides to

wait ten years to accept a settlement offer.

For the same reasons Weiss’s claim under Section 1692e

fails, so, too, does his claims under Section 1692f and 1692g.

The settlement offer is not an “unfair or unconscionable means”

of collecting a debt — Weiss proffers nothing about the open

offer that was “shockingly unjust or unfair, or affronting the

sense of justice, decency, or reasonableness.” Arias, 875 F.3d

at 135. And it comports with Section 1692g’s requirement to

state “the amount of the debt,” again for the reasons set out

above.

IV. Conclusion

For the reasons stated above, Defendants’ motion for

judgment on the pleadings is granted. The clerk is respectfully

directed to close this case.

SO ORDERED.

__/s Eric Komitee___________

ERIC KOMITEE

United States District Judge

Dated: April 7, 2022

Brooklyn, New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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