Case 1:17-cv AT Document 11 Filed 11/17/17 Page 1 of 18

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1 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ENOCK NY ASIMI, Plaintiff, CIVIL ACTION NO. v. 1: l 7-CV-1249-AT-LTW DURHAM & DURHAM, LLP, Defendant. MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION This case is presently before the Court on Defendant Durham & Durham LLP's Motion to Dismiss. (Doc. 5). For the reasons outlined below, this Court RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. (Doc. 5). DEFENDANT'S MOTION TO DISMISS I. BACKGROUND Plaintiff Enock Nyasimi ("Plaintiff') filed this lawsuit on April 6, 2017, against Defendant Durham & Durham, LLP ("Durham"). In Plaintiffs Complaint, Plaintiff appears to argue Durham violated Sections 1692e, 1692f, and 1692g(a)(2) of the Fair Debt Collections Practices Act ("FDCP A") when it did not provide the identity of the original or current creditor in an initial collection letter it sent to her. (Compl. ilil 11-15, ); 15 U.S.C. l 692e(2), (10), l 692f, l 692g(a)(2). Specifically, Plaintiff alleges AO 72A

2 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 2 of 18 on or around April 26, 2016, Durham sent an initial collection letter to her. (Comp!. 10). Plaintiff asserts the letter did not identify the original or current creditor. (Comp!. 12). According to Plaintiff, the letter mentioned "The Bortolazzo Group" but did not identify The Bortolazzo Group's role with regard to ownership of the debt. (Compl. 13). Plaintiff argues Durham's failure to do so is deceptive and misleading because it does not provide the consumer with the information necessary to determine whether she owes the debt. (Compl. 16). Durham contends that Plaintiff's Complaint should be dismissed because the letter explicitly includes the name of the creditor, which is the only entity Durham identified in the letter. Thus, the identity of the creditor is clear to even to the least sophisticated consumer. (Def.'s Br. 2-3). In support, Durham asserts that it no longer has a copy of the letter it sent to Plaintiff, but attaches to its Motion an example of the letter Plaintiff received. (Def. 's Br. 2, Ex. 1 ). The example letter provided as follows: RE: Outstanding Medical Invoice - The Bortolazzo Group LLC Our File Number: Date of Service: Outstanding Balance: FIRST NOTICE Dear Medical services have been provided to you as noted above and full payment has not been received for these services. Your account in the amount shown above has been forwarded to this office by the physician group for accountability. This outstanding balance is your responsibility. 2

3 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 3 of 18 Please send payment to the address listed below so we may clear your debt from our records. Return this form with your full payment or pay online at Durham.com. Make your check or money order payable to Durham & Durham and upon receipt of your payment the account will be closed. At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. CON SUMER NOTICE PUR SUANT TO 15 U. S.C. SECTION l 692(G) You are hereby given notice of the following information concerning the above referenced debt: 1. Unless, within 30 days after receipt of this notice you dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the creditor and by this Firm. 2. If you notify us in writing within said 30 days that the debt, or any portion therefore is disputed, we will obtain verification of the debt, or a copy of any judgment against you, and we will mail such verification to you. 3. In addition, upon your written request within said 30 days, this Firm will provide the name and address of the original creditor if the original creditor is different from the current creditor. 4. This firm is attempting to collect a debt on behalf of the creditor and any information obtained will be used for that purpose... (Def.'s Ex. 1, Doc. 5-1, at 13). II. LEGAL ANALYSIS A. 12(b)(6) Motion to Dismiss Standard Dismissal is warranted under Rule 12(b )( 6) if, assuming the truth of the factual allegations of the plaintiffs complaint, there is a dispositive legal issue which precludes relief or it is based on an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford Cty., 960 F.2d 1002, (1 lth Cir. 1992). A Rule 12(b )( 6) motion to dismiss also tests the sufficiency of the complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint 3

4 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 4 of 18 "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). To state a claim with sufficient specificity requires that the complaint have enough factual matter taken as true to suggest required elements of the claim. Watts v. Fla. Int' l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)). Although matters outside the pleadings are normally not considered on a motion to dismiss, Durham argues the Court may consider the example collection letter attached to its motion to dismiss without converting the motion to a motion for summary judgment. Fed. R. Civ. P. 56 ("If, on a motion under Rule 12(b)(6)... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997); Prop. Mgmt. & Invs. v. Lewis, 752 F.2d 599, 605 (11th Cir. 1985); Finn v. Gunter, 722 F.3d 711, 713 (11th Cir. 1984). The Court may consider an extrinsic document if ( 1) it is central to a claim in the complaint, and (2) its authenticity is unchallenged. Speaker v. U.S. Dep't of Health & Human Svcs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (quoting SFM Holdings, 4

5 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 5 of 18 Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010)); Bryant v. Aargon Collection Agency, Inc., No. 17-CV MIDDLEBROOKS, 2017 WL , at* 1 n.2 (S.D. Fla. Jun. 30, 2017) (considering debt collection letter attached to defendant's motion to dismiss because it was central to the claim and its authenticity was undisputed). Here, the example collection letter is central to Plaintiffs claim. In order to establish her FDCP A claim, Plaintiff must show Durham failed to identify the creditor in its collection letter as required by Section 1692g(a)(2). The example collection letter illustrates the manner in which Durham identified the creditor in its debt collection letter, which is a key issue under Section 1692g(a)(2).1 See Day, 400 F.3d at1275 (concluding that Court could consider standard form of contract on motion to dismiss where contract was central to the claim); Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (considering an Associated Press article on a motion for judgment on the pleadings because the plaintiffs references to the document in his complaint were 1 The fact that Durham's Exhibit 1 is only an example of Durham's collection letter does not mean the example letter is not central to Plaintiffs claims. Courts have considered exemplar documents which are central to the complaint and whose authenticity is not disputed. For example, in Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005), the Eleventh Circuit concluded that it was proper to consider a form dealership contract attached to the motion to dismiss because its contents were not disputed and the plaintiffs' references to the dealership contract were necessary to allege an agency relationship between defendant and its independent dealers. Id. at 1276; see also Amento v. Celebrity Cruises Inc., No. 1:13-CV KMM, 2014 WL , at *3 (S.D. Fla. Oct. 30, 2014) (holding that an "exemplar" of a cruise ticket contract attached to the defendant's motion to dismiss could be considered because its forum selection clause and limitation period provision were central to the plaintiffs claims); Racca v. Celebrity Cruises, Inc., 606 F. Supp. 2d 1373, 1375 (S.D. Fla. 2009) (allowing an exemplar cruise passenger ticket to be attached and considered without converting a motion to dismiss into a motion for summary judgment). 5

6 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 6 of 18 central to his defamation claim). Likewise, Plaintiff has not challenged the authenticity of the example collection letter. Instead of challenging the example letter's authenticity, Plaintiff quotes Durham's Exhibit 1 to support her argument that the collection letter she received did not clearly identify the creditor as required by the FDCP A with the language "RE: Outstanding Medical Invoice-The Bortolazzo Group, LLC." (Pl.'s Br. 7) (citing Def.'s Ex. 1). B. Plaintiff's FDCPA Claims Plaintiff alleges Durham violated Sections 1692e, 1692f, and 1692g(a)(2) of the Fair Debt Collections Practices Act ("FDCPA") when it did not provide the identity of the original or current creditor in an initial collection letter it sent to Plaintiff. (Compl. iii! 11-15, 19-21); 15 U.S.C. 1692e(2), (10), 1692f, 1692g(a)(2). Durham contends Plaintiffs FDCPA claims should. be dismissed because it adequately identified the creditor in its collection letter. In support, Durham argues the FDCP A does not require that the collector place the label "original creditor" next to the name of the creditor, and it may comply with the FDCPA even if it identifies the creditor implicitly. (Def. 's Br. 6, 7). Durham further points out that its collection letter explicitly identifies the creditor because it states it is for an "Outstanding Medical Invoice - the Bortolazzo Group, LLC," advised the consumer that medical services "have been provided to you as noted above," and explained that the letter is for the "above referenced debt." (Def. 's Br. 2). Furthermore, Durham contends Plaintiff fails to allege The Bortolazzo Group is not the correct creditor in her Complaint, and courts have rejected claims where a debtor 6

7 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 7 of 18 attempts to make a case that the name of the creditor is not clearly identified or is merely technically incorrect. In response, Plaintiff contends that the language at the top of Durham's collection letter, "RE: Outstanding Medical Invoice - The Bortolazzo Group, LLC," is not sufficient to identify the name of the current creditor because she had no way of knowing who The Bortolazzo Group was or even their relationship to the alleged debt. (Pl. 's Br. 7). Additionally, Plaintiff argues Durham's additional statements in the collection letter that "medical services have been provided" and "full payment has not been received" are not sufficient to alert her to the fact that the original creditor is The Bortolazzo Group because such phrases do nothing more than to alert her that Durham is trying to collect some unknown debt and there is no mention that The Bartolazzo Group was Plaintiffs medical Service Provider. Indeed, Plaintiff maintains she was completely unaware of who The Bortolazzo Group was. "Congress enacted the FDCP A 'to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses."' Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014) (quoting 15 U.S.C. 1692e). A plaintiff asserting an FDCPA claim pursuant to 15 U.S.C. 1692e, 1692f, and 1692g must plausibly allege ( 1) the defendant is a debt collector; (2) the challenged conduct is related to debt collection; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Reese v. Ellis, Painter, Ratterree & Adams, 678 F.3d 1211, 7 AO 72A

8 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 8 of , 1218 (11th Cir. 2012); see also Miljkovic v. Sharfitz and Dinkin. P.A., 791 F.3d 1291, 1308 (11th Cir. 2015); Green v. Bank of Am. Corp., No. 1 :12-CV-4177-AT-AJB, 2013 WL , at *8 (N.D. Ga. Aug. 6, 2013). Durham does not contest for the purposes of the motion to dismiss the first two elements. Therefore, the issue is whether Plaintiffs complaint states a claim with regard to the third element. Section 1692g(a)(2) of the FDCPA requires debt collectors to include "the name of the creditor to whom the debt is owed" in a communication with a consumer in connection with collection of a debt. 15 U.S.C. l 692g(a)(2). Section l 692e prohibits debt collectors from using a "false, deceptive, or misleading representation" of "the character, amount, or legal status of any debt" or of "any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt." 15 U.S.C. 1692e(2). It also prohibits the use of"any false representation or deceptive means to collect or attempt to collect debt or to obtain information concerning a consumer." 15 U.S.C. l 692e(l 0). The absence of a statutory notice requirement under Section l 692g(a) is actionable as deceptive under Section l 692e(l 0). Caceres, 755 F.3d at Section 1692f prohibits the use of "unfair or unconscionable" means to collect debt. 15 U.S.C. l 692f. A determination that conduct is unfair or unconscionable under Section l 692f also requires an inquiry into deceptiveness. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1201 (11th Cir. 2010). Claims pursuant to 15 U.S.C. 1692e, 1692f, and 1692g are analyzed under the objective "least sophisticated consumer" standard. Id. at (applying least 8

9 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 9 of 18 sophisticated consumer standard to Sections 1692f and 1692g claims); Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1274, 1277 (11th Cir. 2016) (noting that least sophisticated consumer standard applies to Section 1692e claim); Crawford v. L VNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (overruled on other grounds by Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1413 (2017)). 1. Plaintiff's Section 1692g Claim As noted above, Section 1692g(a)(2) of the FDCPA requires debt collectors to include "the name of the creditor to whom the debt is owed" in a communication with a consumer in connection with collection of a debt. 15 U.S.C. 1692g(a)(2). Section 1692g( a) provides in part: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing- (2) the name of the creditor to whom the debt is owed; 15 U.S.C. 1692g(a) (emphasis added). Although the plain language of Section 1692g merely requires that the letter "contain" the name of the creditor, this least sophisticated consumer standard requires more. The key inquiry is whether the "least sophisticated consumer would be deceived or misled by the communication at issue." LeBlanc, 601 F.3d at The Eleventh Circuit has instructed: The 'least sophisticated consumer' can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care... However, the test has an 9 AO 72A

10 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 10 of 18 objective component in that r w lhile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.... LeBlanc, 601 F.3d at 1194 (quotations omitted); see also Bishop, 817 F.3d at 1275 (11th Cir. 2016). That being said, however, courts have generally held that debt collectors may convey the identity of the creditor implicitly under Section 1692g. Ali v. Pendergast & Assocs., No. 1: l 2-CV RWS-GGB, 2014 WL , at * 19 (N.D. Ga. Jun. 2, 2014) ("[C]ollection notices are not deceptive simply because certain essential information is conveyed implicitly rather than explicitly.") (quoting Smith v. Transworld Sys.. Inc., 953 F.2d 1025, (6th Cir. 1992)), adopted by Ali v. Pendergast& Assocs., No. 1:12-CV RWS-GGB, 2014WL (N.D. Ga. July 1, 2014). Applying the least sophisticated consumer standard to the requirement under 15 U.S.C. 1692g(a)(2), Durham's letter adequately identifies the current creditor under the least sophisticated consumer standard. First, the creditor, "The Bortolazzo Group, LLC," is clearly identified in the subject line and is preceded by the phrase "Outstanding Medical Invoice." See Demonte v. Client Servs.. Inc., No. 14-CV-14511, 2015 WL , at *3 (S.D. Fla. July 29, 2015) (finding that one reference to merchant in header of letter located above the plaintiffs account number, which had also appeared on creditor's regular billing statements, would not mislead the least sophisticated 10

11 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 11 of 18 consumer as to the identity of the creditor)2; Ali, 2014 WL , at* 19 (granting summary judgment in favor of defendant where creditor whose identity was undisputed was mentioned once in subject line). Likewise, the header here is sufficient to alert the least sophisticated consumer that The Bortolazzo Group, LLC is the creditor because it provides not just the name of the creditor, "The Bortolazzo Group, LLC," but also the nature of the alleged debt, "Outstanding Medical Invoice," the date of the service triggering the debt, and the amount of the outstanding balance owed in the header of the leader. (Def s Ex. 1 ). The text of the letter's body below also clearly implies the creditor is a physician group called "The Bortolazzo Group, LLC" within the body of the letter. See Talyor v. MRS BPO, LLC, No CV (ARR) (RER), 2017 WL , at *3 2 Plaintiff argues that Demonte is distinguishable because the issue was raised before the court on a motion for summary judgment rather than a motion to dismiss, and a motion for summary judgment is a much higher standard for the non-moving party to meet. (Pl.'s Br. 8). The court in Demonte, however, clarified as a matter of law that failing to explicitly label the creditor is not a per se violation of 1692g(a)(2). The facts of this case are more favorable for Durham than the facts were for the defendant in Demonte because in Demonte, the defendant did not include the technically correct name of the creditor in the collection letter. In that case, Credit First National Association (CFNA), the creditor, issued a Firestone-Tiers Plus credit card to Plaintiff. The defendant debt collector listed the creditor as "Firestone-Tires Plus" in the subject line of the letter. The court held the letter's reference to the merchant, Firestone, was not misleading even though it was technically incorrect because the least sophisticated consumer would conclude the letter was in regard to his or her CFNA/Firestone-Tires Plus Card. Id. at* 3. Like the defendant in Demonte whose reference to a merchant whose name was connected to the credit card provided enough information to imply that the company who issued the card was the creditor, Durham's references here to a "physician group" and "medical services" in the body of the letter were sufficient to imply that The Bortolazzo Group was the creditor. 11

12 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 12 of 18 (E.D.N.Y. July 5, 2017) (holding that "RE: CHASE BANK USA N.A." in the letter header along with two references to Chase Bank in the body of the letter was sufficient to imply to the least-sophisticated consumer that Chase Bank was the creditor); Meininger v. GC Servs. Ltd. P'ship (In re Hathcock), 437 B.R. 696, (Bankr. M.D. Fla. 2010) (finding that five allusions to the original creditor gave sufficient notice as to the identity of the creditor). The text here refers the reader repeatedly to the header above to imply that "The Bortolazzo Group" is Plaintiffs creditor. The first sentence in the body of the letter, which states "medical services have been provided to you as noted above and full payment has not been received for these services," implies the creditor is the medical service provider cited in the header which references an "Outstanding Medical Invoice - The Bortolazzo Group LLC." (Id.). Additionally, this sentence implies the creditor is a medical provider and the medical provider has not yet received payment. The body of the letter also confirms that Plaintiff is responsible for the debt, that the medical provider is a physician group, and that the relationship between the physician group and Durham is one between creditor and debt collector. Furthermore, the following sentences plainly state it is Plaintiff who owes the "outstanding balance" for unpaid medical and that the creditor is a physician group. The letter states, "Your account in the amount shown above has been forwarded to this office by the physician group for accountability" and that "[t]his outstanding balance is your responsibility." (Id.) (emphasis added). The second sentence confirms that Plaintiffs alleged creditor is a "physician group" and that Durham, referred to as "this office," is 12 AO 72A

13 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 13 of 18 attempting to collect on the debt. The designation "group" and repeated references to the header above together clearly imply to the reader that the medical provider to whom an "outstanding medical invoice" is owed is a physician group called "The Bortolazzo Group, LLC." Plaintiff argues the letter fails Section l 692g's requirements on its face because "merely including the current creditor's name in a debt collection letter, without more, is insufficient to satisfy 15 U.S.C. l 692g(a)(2)." (Pl. 's Br. 8) (quoting McGinty v. Profl Claims Bureau, Inc., No. 15-CV-4356 (SJF)(ARL), 2016 WL , at *4 (E.D.N. Y. Oct. 17, 2016). Plaintiff relies on two unpublished decisions from the Eastern District of New York that also involved alleged violations of Section l 692g(a)(2) in which the court found a single mention of the creditor in the subject line of a debt collection letter insufficient under the "least sophisticated consumer" standard. Plaintiff urges the court to adopt similar reasoning here. Both cases, however, are distinguishable from the case at bar. Plaintiff first argues this Court should follow the reasoning of the Eastern District of New York in McGinty v. Profl Claims Bureau, Inc., No. 15-CV (SJF)(ARL), 2016 WL (E.D.N.Y. Oct. 17, 2016). Plaintiff contends that in McGinty, the plaintiffs received collection letters nearly identical to the collection letter Plaintiff received in this case, and the court found that merely including the creditor's name in the collection letter, without more, did not clearly and effectively convey the creditor's role in connection with the debt. (Pl. 's Br. 8). Contrary to Plaintiffs contention, the letter in that case was not similar to this case because it failed 13

14 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 14 of 18 to include further explanation necessary to identify the creditor. The defendant in McGinty sent two separate debt collection letters to the plaintiffs with similar captions in the upper-right-hand comer: Re: ST CATHERINE OF SIENNA Patient Name: CRYSTAL PASKIEWICZ Service Date: 06/03/13 Re: NSLIJ PHYSICIANS - DEPT OF ORTHOPEDIC SURGERY Patient Name: KERRI LYNN MGGINTY Service Date: 01/30/14 Id. at *2. The body of the letter merely stated, "The above referenced account has been referred to our offices for collection," which the court held failed to make clear on whose part the debt collector was acting. Id. at *8-9. Acknowledging that a debt collection letter may explicitly or implicitly identify the creditor, the court in McGinty ruled that "merely including the debtor's name in the caption of a debt collection letter is not, without more explanation, sufficient to satisfy 15 U.S.C. 1692g(a)(2)." Id. at *8 (emphasis added) (quoting Datiz v. Int'l Recovery Assocs., Inc., No. 15-CV-3549, 2016 U.S. Dist. LEXIS , at *29 (E.D.N.Y. Aug. 4, 2016). Unlike the letter in McGinty, which failed to include information in the body of the letter which would allow the consumer to deduce that the names in the caption of the letter were the plaintiff's creditors, the letter here refers to "medical services" that are "noted above," 14

15 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 15 of 18 and explains that an outstanding debt was forwarded to Durham "by the physician group." (Def.'s Ex. 1). Durham's letter also makes it clear that Durham's role was as the collector and was not Plaintiffs creditor as it makes clear that the firm is "attempting to collect a debt on behalf of the creditor." (Def. 's Ex. 1 ). Despite Plaintiffs argument that there is no connection between the descriptive phrases in the first paragraph of the letter and the name, "The Bortolazzo Group," the letter repeatedly refers the reader to the letter's heading. Taken together, the text here is sufficient to imply that the creditor is a medical service provider, the medical service provider is a physician group, and the group is called, "The Bortolazzo Group, LLC." Plaintiff contends that in Beltrez v. Credit Collection Servs., Inc., No. CV (LDW) (AKT), (E.D.N.Y. Nov. 25, 2015) (LEAGLE), the defendant provided a letter similar to the one at issue here, and the court found the least sophisticated consumer would be confused as to the identity of the creditor because the creditor was referenced only once in a separate box near the top of the letter. (Pl. 's Br. 11; Pl. 's Ex. 2, Doc. 6-2). The facts ofbeltrez are further distinguishable. In that case, the court held a caption that included "with regard to" "VERlZON" in the subject line was vague enough to confuse the least sophisticated consumer as a matter of law, since there were 37 Verizon entities registered in the state of New York. Id. at 2. Unlike the plaintiff in Beltrez, who argued the least sophisticated consumer would be confused because the letter failed to specify to which Verizon entity the debt was owed, Plaintiff here does not allege that reference to "The Bortolazzo Group" is easily confusing due to the 15 AO 72A

16 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 16 of 18 prevalence of similarly named businesses. Plaintiff alleges she had never heard of The Bortolazzo Group. With this in mind, Plaintiff argues she had no way of knowing who The Bortolazzo Group was in relationship to the alleged debt or their affiliation with Durham. Plaintiff also argues the letter only showed Durham was trying to collect a debt. (Pl. 's Br. at 7). As discussed above, however, the letter included enough information to lead even the least sophisticated consumer to understand that the Bortolazzo Group was the creditor and Durham was trying to collect the debt on its behalf. Thus, even construing all facts in the pleadings in Plaintiffs favor, the court would not be able to find a violation of Section 1692g( a)(2) because the "least sophisticated consumer" standard is an objective standard. See LeBlanc v. Unifund CCR Partners, 601F.3d 1185, 1194 (11th Cir. 2010). Plaintiffs understanding of the letter is not in issue and would lead to Durham's liability for a bizarre or idiosyncratic interpretations of the collection notice that the least sophisticated consumer standard is meant to avoid. LeBlanc, 601 F.3d at 1194 (explaining that the least sophisticated consumer standard "prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness"); see also Macelus v. Capital Collection Serv., No (RBKJJS), 2017 WL , at *2-3 (D.N.J. Nov. 7, 2017) ( explaining that although letter did not explicitly identify the creditor, it was clear who the creditor was because in the upper right comer of the letter, it indicated that "Account for Advanced Endoscopy & Surgical Ctr, LLC," the letter made clear it was an attempt to collect a debt by the debt collector, 16

17 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 17 of 18 and stated how much money was sought). 2. Plaintiffs Section 1692e Claims Plaintiffs claims pursuant to Section 1692e fair no better. First, Plaintiffs Complaint does not clearly impart how Durham allegedly violated Section 1692e, and stated only that "Defendant's debt collection efforts attempted and/or directed towards Plaintiff violate various provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(l 0), 1692f, and 1692g. Thus, this Court infers that Plaintiff is contending that Durham's alleged failure to identify the creditor also violated Sections 1692e(2) and 1692e( 10). Section 1692e(2) prohibits debt collectors from using a "false, deceptive, or misleading representation" of"the character, amount, or legal status of any debt" or of"any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt." 15 U.S.C. 1692e(2). Section 1692e(l 0) prohibits the use of "any false, deceptive, or misleading representation[ s] or means in connection with the collection of any debt." 15 U.S.C. 1692e(l 0). As discussed above, under the least sophisticated consumer standard, Durham's letter provided sufficient information to imply the amount of the debt and the relationship between Durham the debt collector and The Bortolazzo Group, the creditor, with regard to the debt. Having determined that Plaintiff fails to state a claim under the least sophisticated consumer standard pursuant to Section 1692g(a)(2), the Court finds Plaintiff fails to state a claim under Section 1692e. Thus, the letter was not false, deceptive, or misleading with regard to the character, amount, and legal status of the 17

18 Case 1:17-cv AT Document 11 Filed 11/17/17 Page 18 of 18 debt or services rendered by the debt collector. 3. Plaintiffs l 692f Claim Plaintiff also failed to specifically impart how Durham's collection efforts violated Section l 692f. Thus, this Court infers that Plaintiff is arguing Durham also violated Section 1692 by failing to identify the creditor. Section l 692f prohibits the use of "unfair or unconscionable" means to collect debt. 15 U.S.C. l 692f. Although "unfair" and "unconscionable" are vague terms, courts inquire as to whether conduct is deceptive to determine whether conduct is unfair or unconscionable. LeBlanc, 601 F.3d Having concluded Durham's conduct did not violate Section l 692g( a )(2) and was thus not deceptive or misleading, the Court finds in the absence of further factual allegations with regard to Section l 692f that Plaintiff fails to state a claim pursuant to Section l 692f. CONCLUSION For the foregoing reasons, this Court RECOMMENDS that Durham's Motion to Dismiss be GRANTED. (Doc. 5). As this is a final Report and Recommendation and there are no other matters pending before this Court, the Clerk is directed to terminate the reference to the undersigned. SO REPORTED AND RECOMMENDED, this _ll_ day ofnovember, ls/linda T. WALKER LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE 18