Sarno v. Midland Credit Management, Inc.

11-559-cv Sarno, v. Midland Credit Management, Inc., et al. 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of New 4 York, on the 22nd day of September, two thousand and eleven. 5 6 PRESENT: GUIDO CALABRESI, 7 RICHARD C. WESLEY, 8 GERARD E. LYNCH, 9 Circuit Judges. 10 11 12 13 STEPHEN L. SARNO, INDIVIDUALLY AND ON BEHALF OF A CLASS, 14 15 Appellant, 16 17 -v.- 11-559-cv 18 19 MIDLAND CREDIT MANAGEMENT, INC., MIDLAND FUNDING LLC, 20 21 Appellee. 22 23 24 FOR APPELLANT: DANIEL EDELMAN (Cathleen Combs, on the 25 brief), Edelman, Combs, Latturner, & 26 Goodwin, LLC, Chicago, IL. 27 28 FOR APPELLEE: PETER T. SHAPIRO (Jeffry A. Miller, Jamie 29 R. Wozman, on the brief), Lewis Brisbois 30 Bisgaard & Smith LLP, New York, NY) 31 32 Appeal from the United States District Court for the 33 Southern District of New York (Pauley, J.) 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 2 AND DECREED that the judgment of the United States District 3 Court for the Southern District of New York be AFFIRMED. 4 Appellant appeals from a judgment of the United States 5 District Court for the Southern District of New York 6 (Pauley, J.), dismissing Appellant’s complaint under Federal 7 Rule of Civil Procedure 12(b)(6) for failure to state a 8 claim upon which relief could be granted. We assume the 9 parties’ familiarity with the underlying facts, the 10 procedural history, and the issues presented for review. 11 Section 1692g of the Fair Debt Collection Practices Act 12 ("FDCPA") requires a debt collector to provide debtors with 13 written notice of their validation rights. 15 U.S.C. 14 § 1692g. A debt collection notice that overshadows or 15 contradicts the validation notice violates § 1692g of the 16 FDCPA. Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d 17 Cir. 1998); Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 18 1993). A debt collector may not use “false 19 representation[s] or deceptive means to collect or attempt 20 to collect any debt or to obtain information concerning a 21 customer.” 15 U.S.C. § 1692e(10). The “test for 22 determining whether a collection letter violates [§ 1692g or 2 1 § 1692e(10)] is an objective standard based on the ‘least 2 sophisticated consumer.’” Clomon, 988 F.2d at 1318; see also 3 Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). 4 Appellant asserts that Midland’s collection letter 5 violated the FDCPA because it included a sentence (following 6 the statutorily required notice under § 1692g), which read: 7 “Please remember, even if you make a payment within 30 days 8 after receiving this notice, you still have the remainder of 9 the 30 days to exercise the rights described above.” 10 Even as read by the least sophisticated consumer, that 11 sentence unambiguously referenced only the rights described 12 in the statutorily required notice that immediately preceded 13 it. Because the letter merely informed Sarno that partial 14 payment would not affect the rights provided for in § 1692g, 15 it did not overshadow or contradict the § 1692g notice and 16 was not false, misleading, or deceptive. Therefore, Sarno 17 failed to state a claim upon which relief could be granted 18 and his complaint was properly dismissed. 19 For the foregoing reasons, the judgment of the district 20 court is hereby AFFIRMED. 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 3