United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR SUMMARY
R. Underhill United States District Judge
Cicalo filed this action on March 1, 2016, against the law
firm Hunt Leibert Jacobson, P.C.
(“Hunt”), and one of its attorneys, Christopher J.
Picard, alleging multiple violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”). On April 26, 2016,
defendants moved to dismiss all claims for failure to state a
claim. Thereafter, on September 6, 2016, Cicalo filed a
motion to amend his complaint in which he sought to add
factual allegations in an attempt to cure perceived defects
in the complaint. On January 10, 2017, in a single ruling, I
granted Cicalo's motion to amend his complaint and,
construing the defendants' earlier motion to dismiss as
applied to the Amended Complaint, I dismissed the claims
brought under sections 1692f and section 1692g. Following
that ruling, the only claims remaining in this case pertain
to alleged violations of 15 U.S.C. § 1692e. On March 30,
2017, Cicalo filed a motion for summary judgment on the
remaining claims. On May 22, 2017, the defendants filed an
opposition to Cicalo's motion, which included a
cross-motion for summary judgment. Because both parties have
moved for summary judgment, I now consider whether it would
be appropriate in favor of either party, or whether the
matter will proceed to trial.
Standard of Review
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). When a
motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving
party may not rest upon the mere allegations or denials of
the pleadings, but must present sufficient probative evidence
to establish a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788
(2d Cir. 1992). If the nonmoving party submits evidence that
is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
assume the parties' familiarity with the facts and
provide only a brief overview of the undisputed facts. The
instant dispute arises out of a mortgage loan transaction
between Cicalo and First Niagara Bank, N.A. (“First
Niagara”), which closed in 2004. On September 3, 2015,
Hunt sent a letter (the “September 3 Letter”) on
behalf of First Niagara, which stated that Cicalo owed First
Niagara $115, 058.54. On September 10, 2015, Cicalo responded
in writing, disputing the amount owed and demanding an
itemization of the debt. On November 19, 2015, Picard sent
Cicalo a letter in which he stated that he had contacted
First Niagara and confirmed that the amount set forth in the
initial letter was accurate. Included in Picard's letter
were (1) a copy of a prior letter from Hunt to Picard, dated
November 19, 2015 (the “November 19 Letter”),
which disclosed a balance of $124, 062.90, as of that date;
(2) documents disclosing a balance of $96, 354.27 as of
August 15, 2015; and (3) documents showing the assignment of
the note and mortgage by the predecessor of First Niagara to
NewAlliance Servicing Company, now known as First Niagara
November 24, 2015, Cicalo responded in writing, once again
disputing the balance and requesting an itemization of seven
of the purportedly new charges set forth in the November 19
Letter. The defendants did not respond to Cicalo's
November 24, 2015 letter and thereafter instituted a
foreclosure action on behalf of First Niagara against Cicalo
in December 2015. The documents served on Cicalo in the
foreclosure action included an additional document, which
referenced Cicalo's right to dispute the debt or any
portion thereof. On December 30, 2015, Cicalo once again
disputed the balance listed in the foreclosure action and
requested an itemization of the debt. The defendants never
responded to that request.
enacted the FDCPA ‘to eliminate abusive debt collection
practices by debt collectors, to [en]sure 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.'” Hess v. Cohen &
Slamowitz LLP, 637 F.3d 117, 120 (2d Cir. 2011) (quoting
15 U.S.C. § 1692(e)). Section 1692e of the FDCPA
provides that “[a] debt collector may not use any
false, deceptive, or misleading representations or means in
connection with the collection of any debt.” 15 U.S.C.
question of whether a communication complies with the FDCPA
is determined from the perspective of the ‘least
sophisticated consumer.'” Jacobson v.
Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir.
2008) (citing Clomon v. Jackson, 988 F.2d 1314, 1318
(2d Cir. 2003)). “This objective standard is designed
to protect all consumers, the gullible as well as the shrewd,
while at the same time protecting debt collectors from
liability for bizarre or idiosyncratic interpretations of
collection notices.” Maguire v. Citicorp Retail
Servs., Inc., 147 F.3d 232, 236 (2d Cir. 1998) (internal
quotations omitted). The test aims at balancing the need to
protect consumers against the need to ensure that debt
collectors are not held liable “for unreasonable
misinterpretations of collection notices.”
Clomon, 988 F.2d at 1319. This objective standard
presumes the consumer possesses at least a “rudimentary
amount of information about the world.” Id.
addressing whether or not the defendants' actions could
be considered violations of the FDCPA, I must first consider
whether there are sufficient facts in the record for a jury
to conclude that the defendants are in fact debt collectors
under the FDCPA. Goldstein v. Hutton, Ingram, Yuzek,
Gainen, Carroll & Bertolotti, 374 F.3d 56, 60-61 (2d
Cir. 2004). Next, because the remaining allegations involve
violations of section 1692e, I must also determine whether
the alleged communications were “in connection
with” the collection of a debt. Hart v. FCI Lender
Servs., Inc., 797 F.3d 219, 225 (2d Cir. 2015).
Whether defendants are debt collectors
bring a defendant within the ambit of the FDCPA, it is the
plaintiff's burden to prove “the defendant's
debt collector status.” Goldstein, 374 F.3d at
60. In other words, to survive summary judgment, Cicalo must
“make a showing sufficient to support a determination
that [the defendants were] debt collector[s] at the time
[they] issued the challenged communication.”
Id. at 60-61. A plaintiff may establish a
defendant's debt collector status by showing: (1) that
debt collection is the “principal purpose” of the
defendant's business; or (2) that the defendant
“regularly” engages in debt collection activity.
Id. at 61 (quoting 15 U.S.C. § 1692a(6)).
Because there is no contention-or at least no evidence-that
debt collection was a principal purpose of the
defendants' business, the issue is whether the defendants
“regularly engaged in such activity.”
Id. at 61.
addressing whether the defendants engaged in debt collection
with sufficient regularity, I must first determine whether
the complained-of conduct constitutes “debt collection
activity.” Id. at 61. Defendants argue that
their communications to Cicalo cannot constitute debt
collection activity because the communications were made for
the sole purpose of enforcing a security interest.
are correct that many courts have concluded that
communications sent for the sole purpose of enforcing a
security interest do no constitute debt collection
activities. See Derisme v. Hunt Leibert Jacobson
P.C., 880 F.Supp.2d 339, 361-62 (D. Conn. 2012)
(collecting cases). Those cases rely on a construction of
section 1692a(6) that implicitly exempts enforcers of
security interests from the requirements of the FDCPA.
Id. at 361. Relying on the interpretive cannon of
“expression unius est exclusion alterius,
” courts point to the fact that section 1692a(6) only
expressly identifies enforcers of security interests as debt
collectors in reference to Section 1692f(6), which prohibits
“[t]aking or threatening to take any nonjudicial action
to effect dispossession or disablement of property [under
false pretenses].” See Derisme, 880 F.Supp.2d
at 361. The fact that “the statute specifically says
that a person in the business of enforcing security interests
is a ‘debt collector' for the purposes of §
1692f(6) . . . reasonably suggests that such a person is not
a debt collector for purposes of the other sections of the
Act.” Warren v. Countrywide Home Loans, Inc.,
342 F. App'x 458, 460 (11th Cir. 2009).
not find those cases persuasive because their effect is to
imply an identity-based exclusion where Congress did not
expressly provide it. See Kaymark v. Bank of Am.,
N.A., 783 F.3d 168, 179 (3d Cir. 2015), cert. denied
sub nom. Udren Law Offices, P.C. v. Kaymark, 136 S.Ct.
794 (2016) (holding enforcers of security interests not
exempted from FDCPA). Section 1692a(6) broadly defines
“debt collector” as, inter alia, “any
person . . . 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). It
specifically exempts from liability certain classes of
individuals notwithstanding the fact that they make take
actions to collect or attempt to collect on a debt.
Id. at § 1692a(6)(A)-(F). Notably absent from
those exclusions are individuals engaged in the enforcement
of security interests. See Wilson v. Draper &
Goldberg, P.L.L.C., 443 F.3d 373, 378 (4th Cir. 2006).
The natural implication of that absence is that individuals
engaged in the enforcement of security interests may be
considered debt collectors so long as they engage in
activities to collect or attempt to collect a debt. See
Kaymark, 783 F.3d at 179. Section 1692a(6)'s
reference to enforcers of security interests operates only to
“include as debt collectors, for the purposes
of § 1692f(6), those who only enforce security
interests” and who would not otherwise qualify as debt
collectors under section 1692a(6)'s general definition.
Wilson, 443 F.3d at 378 (emphasis in original). As
the courts in Kaymark and Wilson have
noted, any conclusion to the contrary would “create an
enormous loophole in the FDCPA by immunizing any debt from
coverage if that debt happened to be secured by a real
property interest and foreclosure proceedings were used to
collect the debt.” Kaymark, 783 F.3d at 179
(quoting Wilson, 443 F.3d at 376) (internal
interpretation of section 1692a(6) comports with the Second
Circuit's view of that section and the FDCPA in general.
See Goldstein, 374 F.3d at 60 (citing Heintz v.
Jenkins, 514 U.S. 291, 299 (1995)) (“The Supreme
Court has made it clear that the FDCPA applies to attorneys
‘regularly' engaging in debt collection activity,
including such activity in the nature of litigation.”).
In Goldstein, the Court held that state-law required
notices issued by a law firm in connection with eviction
proceedings constituted a “debt collection activity,
within the scope of the FDCPA.” Id. The Court
was not concerned that the purposes of such notices were to
commence summary proceedings to recover possession of
property rather than collect on a debt. Id. at 59
n.1. Similarly, in Hart v. FCI Lender Serv., Inc.,
the Court did not spend any time considering the status of
the purported debt collector or the purposes for which it was
sending the alleged communication. 797 F.3d 219, 226 (2d Cir.
2015). Rather, in determining whether a letter was an attempt
to collect a debt, the Court looked to whether a reasonable
consumer would interpret it as an attempt to collect such
debt. Id. The Court explicitly held that neither
defendant's purported intention in sending the letter-to
comply with the Real Estate Settlement Procedure Act
(“RESPA”)-nor “the absence of an explicit
payment demand” operated to “take the
communication outside the FDCPA.” Id. at
226-27. In other words, to determine whether a given
communication constituted a debt collection activity, the
Second Circuit looks to the communication itself and not the
identity or intent of the sender. Id. Moreover, the
Court was unconcerned with the fact that a defendant may
incur FDCPA liability by simply complying with another
federally or state-law mandated requirement. Id.;
see also Romea v. Heiberger & Assocs.,
163 F.3d 111, 118 (2d Cir. 1998) (compliance with state law
requirement insufficient to absolve defendant of liability
I conclude that enforcers of security interests are not
per se excluded from the definition of debt
collector under the FDCPA, I must next consider whether the
defendants' alleged conduct constitutes a “debt
collection activity” under section 1692a(6). Whether a
communication constitutes a “debt collection
activity” under section 1692a(6) and whether that same
communication constitutes a communication sent “in
connection with the collection of any debt” under
section 1692e appear to be analogous inquiries. If anything,
latter inquiry is a narrower one, such that any letter deemed
to be sent “in connection with the collection of any
debt” will also be deemed to constitute a “debt
collection activity.” See Kaymark, 783 F.3d at
179 (noting “broad definition” of “debt
collection” under the FDCPA); Kaltenbach v.
Richards, 464 F.3d 524, 529 (5th Cir. 2006)
(“party who satisfies § 1692a(6)'s general
definition of a ‘debt collector' is a debt
collector for the purposes of the entire ...