18‐2208
Taubenfliegel v. EGS Financial Care, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 4th day of April, two thousand
nineteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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MENACHEM TAUBENFLIEGEL,
individually and on behalf of others
similarly situated,
Plaintiff‐Appellant,
v. 18‐2208
EGS FINANCIAL CARE, INC.,
Defendant‐Appellee.
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FOR APPELLANT: Adam J. Fishbein, Adam J. Fishbein,
P.C., Woodmere, NY.
FOR APPELLEE: Geoffrey Young, Reed Smith LLP,
New York, NY (Aaron R. Easley,
Sessions, Fishman, Nathan & Israel
L.L.C., Flemington, NJ, on the brief).
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court entered on
June 25, 2018 is AFFIRMED.
Menachem Taubenfliegel appeals from a judgment of the United States
District Court for the Eastern District of New York (Ross, J.) dismissing his
complaint for failure to state a claim upon which relief can be granted.
Taubenfliegel alleges that EGS Financial Care, Inc. (“EGS”) violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by sending
inaccurate and misleading debt collection letters. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
EGS sent Taubenfliegel a collection letter that listed his total debt balance
and stated that his “account balance may be periodically increased due to the
addition of accrued interest or other charges as provided in [his] agreement with
the original creditor or as otherwise provided by state law.” App. 15.
The FDCPA prohibits “any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The
Act further requires specific disclosures by a debt collector within five days after
an initial communication with a consumer, including “the amount of the debt.”
Id. § 1692g(a)(1). Taubenfliegel alleges that the collection letter is misleading
and fails to state the amount of debt, in violation of §§ 1692e and 1692g, because,
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inter alia, it fails to inform consumers “whether the amount listed is the actual
amount of the debt due” and “whether the account balance listed will increase,”
and fails to provide details regarding the “accrued interest” or “other charges”
that may increase the balance in the future. Compl. ¶¶ 21‐37.
We review de novo a grant of a motion to dismiss. Hart v. FCI Lender
Servs., Inc., 797 F.3d 219, 223 (2d Cir. 2015). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We “accept as
true all of the allegations contained in a complaint,” though “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
In determining whether a collection notice violates the FDCPA, “we are
guided by two principles of statutory construction.” Avila v. Riexinger &
Assocs., LLC, 817 F.3d 72, 75 (2d Cir. 2016). First, the Act must be construed
liberally to effectuate its stated purpose. Id. Second, collection notices are to be
looked at from the perspective of the “least sophisticated consumer.” Id.
Pursuant to this standard, “a collection notice can be misleading if it is open to
more than one reasonable interpretation, at least one of which is inaccurate.” Id.
(internal quotation marks omitted).
Section 1692e of the FDCPA “requires debt collectors, when they notify
consumers of their account balance, to disclose that the balance may increase due
to interest and fees.” Id. at 76. No specific language is required, but in order to
comply with § 1692e, a debt collection letter must “either accurately inform[] the
consumer that the amount of the debt stated in the letter will increase over time,
or clearly state[] 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. EGS’s letter advises that the debt may increase over time, and therefore
satisfies the requirements of § 1692e. Kolbasyuk v. Capital Mgmt. Servs., LP, ‐‐‐
F.3d ‐‐‐‐, 2019 WL 1119191, at *4 (2d Cir. Mar. 12, 2019).
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Taubenfliegel argues that the collection letter violated § 1692g because it
failed to provide enough information to allow the least sophisticated consumer to
determine the amount owed as of the date of the letter, the amount that must be
paid to resolve the debt at any given moment in the future, and the details of fees
and interest that will cause the balance to increase over time. But his argument
is foreclosed by Kolbasyuk, in which we explained that § 1692g(a) requires a
statement of “the total, present quantity of money that the consumer is obligated
to pay.” Id. at *2. EGS’s letter stated Taubenfliegel’s total debt balance as of the
date the letter was sent, and “[n]othing in Section 1692g required [EGS] to inform
[Taubenfliegel] of the constituent components of that debt or the precise rates by
which it might later increase.” Id. EGS’s letter therefore complied with
§ 1692g.
As detailed in Kolbasyuk, our decision in Carlin v. Davidson Fink, LLP, 852
F.3d 207 (2d Cir. 2017), is inapposite. See Kolbasyuk, 2019 WL 1119191, at *3.
Carlin held that an initial debt collection letter inadequately discloses the amount
of the debt if it contains a payoff statement that includes unaccrued fees and
interest, unless it allows the customer to determine the minimum amount owed at
the time of the notice and an explanation of the fees that will cause the balance to
increase. 852 F.3d at 216. In other words, an estimated amount of debt owed is
not an accurate reflection of the “amount of the debt” if it includes fees and
interest not yet owed. See id. at 215‐16.
EGS’s letter did not contain a payoff statement estimating potential future
charges. It stated the actual total amount due as of the date of mailing, and
further informed Taubenfliegel that the amount may increase due to interest and
fees. Because the total debt balance did not include unaccrued interest and fees,
the letter accurately stated the “amount of the debt.” Accordingly,
Taubenfliegel’s § 1692g claim fails as a matter of law.
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We have considered Taubenfliegel’s remaining arguments and find them to
be without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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