Appeal from a judgment for defendant-appellee entered, after a bench trial, in the United States District Court for the Western District of New York, John T. Curtin, Judge, dismissing plaintiff-appellant's complaint alleging various violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (1982 & Supp. V 1987). Reversed and remanded.
Newman, Pierce and Mahoney, Circuit Judges.
Plaintiff-Appellant Vadonna Pipiles ("Pipiles") appeals from a judgment entered, after a bench trial, in the United States District Court for the Western District of New York, John T. Curtin, Judge, dismissing her complaint alleging various violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (1982 & Supp. V 1987) (the "FDCPA"), by defendant-appellee the Credit Bureau of Lockport, Inc. (the "Bureau"). The complaint alleges six violations of the FDCPA and two violations of the New York General Business Law. On appeal, Pipiles addresses three of the six violations of the FDCPA and a fourth violation thereof not stated in her complaint. We consider the issues presented on appeal.
This case is based primarily upon a document entitled "48 HOUR NOTICE" mailed by the Bureau to Pipiles on April 9, 1987 (the "Notice"). Pipiles charges that the Notice (1) misrepresented the character and amount of a debt in violation of 15 U.S.C. § 1692e(2)(A) (1982); (2) threatened action that was not intended to be taken in violation of 15 U.S.C. § 1692e(5) (1982); (3) used a false representation or deceptive means to collect or attempt to collect a debt in violation of 15 U.S.C. § 1692(e)(10) (1982); and (4) failed to disclose clearly that the Bureau was attempting to collect a debt and that any information obtained would be used for that purpose, in contravention of 15 U.S.C. § 1692e(11) (1982).
In an oral opinion at the conclusion of trial, the district court dismissed the complaint and directed entry of judgment for the Bureau. For the reasons that follow, we find violations of the FDCPA, and reverse and remand for an award of costs and an attorney's fee to Pipiles.
An indebtedness of $35.00 owed by John T. Julius ("Julius"), ex-husband of Pipiles, for services rendered to Julius' subsequent spouse, Patricia, by Cardiology Associates was referred to the Bureau for collection on April 17, 1986. On March 3, 1987, a further indebtedness of $100.00 purportedly owed by Julius for dental work performed on Tina Julius, the daughter of Julius and Pipiles, by Drs. Sippel, Doyle and Murray was referred to the Bureau for collection. The Bureau thereupon sent a written communication to Julius, who came to the Bureau on March 6, 1987 with a copy of the decree divorcing him from Pipiles, which provided inter alia that "[Julius] shall maintain health and hospitalization for the minor issue of the marriage with any medical, dental, visual or similar bills to be split equally between the parties here to." The decree does not identify these minor issue by name, but it is clear from the support provisions of the decree that there are two such issue.
Robert B. Emerick ("Emerick"), president of the Bureau, testified that he thereupon sent an initial form letter to Pipiles on March 7, 1987 concerning the $135.00 indebtedness which included the statement: "This is an attempt to collect a debt. Any information obtained will be used for that purpose." Pipiles denied receipt of the letter, but the district court accepted Emerick's testimony that it was sent. A further notice, in the same format as the Notice which is the subject of this litigation, was sent to Julius on April 1, 1987, resulting in his payment of $85.00 to the Bureau on April 13, 1987 (i.e., the full amount of the $35.00 indebtedness to Cardiology Associates and half of the $100.00 dental bill). Meanwhile, however, the Bureau mailed the Notice to Pipiles on April 9, 1987.
The Notice demanded payment of one-half of an outstanding amount of $135.00. Across the top of the Notice was printed in large type "48 HOUR NOTICE." The Notice also stated in capital letters that: "Notice is Hereby Given That This Item Has Already Been Referred For Collection Action," "We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure Payment In Full," and "Pay This Amount Now If Action Is To Be Stopped." As for the source of the debt, a handwritten notation under the legend "On The Account Of" read "Drs Sippel, Doyle & Murray & Cardiology Associates 135.00". The Notice also contained the handwritten notations "for Patricia & Tina" and "Your ex-husband John Julius states that you are responsible for 1/2 the stated amount. Please remit to this office by 4-15-87," as well as the name and address of Pipiles (as addressee), and the name, address and telephone number of the Bureau.
Pipiles called the Bureau the next day and told a secretary that she was not responsible for any bill relating to Patricia Julius, the wife of her ex-husband. In a telephone conversation that he initiated with Pipiles the next day, Emerick conceded this. Pipiles testified that she was never told by the Bureau what the breakdown was between the two bills which totalled $135.00, and has never paid the $50.00 that she concededly owes on the dental bill.
Emerick testified that he had no prior knowledge, when the Notice was sent to Pipiles, that Patricia was not a daughter of Pipiles and Julius, and that the $35.00 indebtedness to Cardiology Associates was included in the Notice for that reason. He further testified that in dealing with a $50.00 account (the amount of Pipiles' indebtedness), he would "try to contact by phone," but would not institute legal action for an account less than $150.00.
At the conclusion of the bench trial, the district court rendered an oral decision dismissing the complaint. The court made no specific determination with respect to Pipiles' claim that section 1692e(2)(A) was violated by a false representation as to the character and amount of a debt; this claim was not stated in Pipiles' complaint and is apparently raised for the first time on appeal. The district court rejected the overlapping claims of violations of section 1692e(5) ("threat to take any action that . . . is not intended to be taken") and section 1692e(10) ("use of any false representation or deceptive means to collect or attempt to collect any debt"), concluding that "[there] is nothing said here that he is going to refer this further to an attorney," and "there is no violation of either the letter or the spirit of the law." As to section 1692e(11), which, with an exception not here pertinent, requires the disclosure in "all communications made to collect a debt" that "the debt collector is attempting ...