In Zimmerman v. Portfolio Recovery Associates, LLC. — F.R.D. —-, 2011 WL 4349355 (S.D.N.Y. 2011), Judge Gardephe found a debt collector’s ‘Pre-suit ackage” to violate the FDCPA because it simulated documents authorized by a Court, and certified a class action. The “Pre-Suit Package” was described as follows:
Enclosed please find a copy of the lawsuit our local counsel in your state intends to file against you related to the delinquent account referenced above. If you pay the balance due on this account or make acceptable payment arrangements with our office by April 29, 2009, we will instruct our local counsel not to file the lawsuit against you at this time. Please contact our office by April 29, 2009, to either pay the balance due on this account or make acceptable payment arrangements to stop the lawsuit from being filed against you. Attached to the letter is a “Summons.” The Summons has a caption setting forth the court—“DISTRICT COURT OF THE COUNTY OF NASSAU, FIRST DISTRICT”—and the parties to the purported lawsuit: “PORTFOLIO RECOVERY ASSOCIATES, LLC—against—JASON P ZIMMERMAN.” (Id.; Pltf. R. 56.1 Stat. ¶ 22) The Summons indicates that Zimmerman has either 20 or 30 days to answer the complaint, depending on whether service was made personally or otherwise. (Id.) A “Complaint” bearing the same caption, and setting forth a cause of action for account stated, accompanies the Summons. (Id.) The package also contains an “Affidavit of Military Investigation”—bearing the same caption—and attesting to the fact that Zimmerman is “not currently in the military service.” (Id.; Pltf. R. 56.1 Stat. ¶ 22) All of these documents are “identical to those generated for and transmitted” for use in actual litigations in New York State courts. (Pltf. R. 56.1 Stat. ¶ 19) The “Pre–Suit Package” also contains a “Notice to Debtor Pursuant to the Fair Debt Collections Practices Act.” The notice sets forth the disclosures required under 15 U.S.C. § 1692(g), including that the debtor has 30 days to contest the debt. (Id.)
The Court found that this”Pre-Suit Package” violated the FDCPA:
The “Pre–Suit Package” sent to Zimmerman, which includes a Summons and Complaint bearing a case caption referencing the District Court of the County of Nassau, First District, and listing Zimmerman as a defendant, is strikingly similar to documents that have been found to violate the FDCPA. In Wiener v. Bloomfield, 901 F.Supp. 771, 776 (S.D.N.Y.1995), for example, Judge Kaplan found violations of 15 U.S.C. § 1692e(9) and (13) where the defendant debt collector sent documents to the plaintiff captioned “Summons” and “Summons & Complaint,” in the customary form for filing in New York State Supreme Court. The defendant in Weiner claimed that a cover letter “made it clear that the documents had not actually been served on plaintiff and, in consequence, that he did not misrepresent the summons and complaint as authorized by a court or as legal process.” The court was not persuaded: “[t]he legal subtleties on which defendant relies likely would be lost on the “least sophisticated consumer,” who probably would assume that the imposing and formal-looking court documents, with prescribed dates for returning an acknowl-edgment of receipt … were in fact legal process…. [I]t would take a far more explicit statement than the reference to the fact that process was ready to be served to convey to the least sophisticated consumer that, despite the attached summons and complaint with acknowledgment form and return date, a lawsuit had not been commenced.” Wiener, 901 F.Supp. at 776. ¶ In rejecting defendant’s argument, the court also noted that “the Act prohibits … the use of documents that merely ‘simulate’ documents authorized by a court.” Id.; see also Johnson v. Eaton, 873 F.Supp. 1019, 1027–28 (M.D.La.1995) (finding that the least sophisticated consumer would have believed he had been sued and that the documents had been issued by a court when “[t]he letter has a suit caption in the heading and is attached to a document which more prominently displays this same caption. The other part of the heading contains the name of the court and the body of the document has all the indications that it came from a court.”). ¶ Under the objective, “least sophisticated consumer” standard, the Court concludes that Zimmerman has met his burden of demonstrating that Defendant has violated 15 U.S.C. § 1692e(9) and (13). The “least sophisticated consumer” might well conclude that Defendant had initiated a lawsuit to collect the debt, given the form of the Summons and Complaint, the reference to the court and parties, the requirement to respond within 20 or 30 days, and the fact that an attorney from Portfolio’s “Litigation Department” had signed the cover letter. Zimmerman’s motion for summary judgment on his FDCPA claim will be granted.