In Marcotte v. Bank of America, 2015 WL 2184369 (S.D. Tex. 2015), Judge Rosenthal found that an FDCPA Plaintiff failed to state a claim against a credit card issuer under the FDCPA’s “false-name” exception so as to trigger the Act against a creditor.
The false name exception does not apply in this case. The billing statement from Barclays that the Marcottes attach to their second amended complaint could not give the least sophisticated consumer the false impression that a party unaffiliated with Barclays was collecting their Sunset Harbor debt. The billing statement includes numerous references to Barclays, including the following:
- Powered by Barclaycard; www.BarclaycardUS.com;
- To view your most recent transaction activity online, go towww.BarclaycardUS.com;
- Make payments online atwww.BarclaycardUS.com; barclaycard;
- Your credit card is issued by Barclays Bank Delaware;
- Both the Minimum Payment Due and Payment Due Date are noted on your statement and on the Accounts page when you login towww.BarclaycardUS.com;
- A “conforming payment” is a payment … mailed with a payment coupon printed fromwww.BarclaycardUS.com.
(Docket Entry No. 35, Ex. C). Although the billing statement also refers to RCI Elite Rewards, which the plaintiffs allege is “the largest vacation time share exchange in the world,” (Docket Entry No. 35, ¶ 13), the billing statement clearly instructs the Marcottes to “[m]ake payments online atwww.BarclaycardUS.com.” (Id.). There is no plausible allegation that the least sophisticated consumer would believe that RCI Elite Rewards or any entity other than Barclays was collecting their debt. Under the Marcottes’ approach, a billing statement for a credit card affiliated with an airline, such as United, could subject the creditor to statutory liability merely because of references made to the airline in the billing statement. The Marcottes argue that the billing statement contains no references to “Barclays Bank PLC.” Although the Marcottes sued “Barclays Bank PLC,” not Barclays Bank Delaware, Barclays has consistently represented to the court that this was a mistake. When Bank of America informed the Marcottes that their credit-card account had been transferred to Barclays, it informed them that the “account was sold to Barclays Bank Delaware,” not Barclays PLC. (Docket Entry No. 35, Ex. B). In any event, creditors may use the name under which they usually transact business, acronyms or abbreviations that commonly identifies them, or the name they used from the beginning of the credit relationship, as long as it would not mislead the consumer into believing that a separate entity was involved. See Rollo, 2013 WL1390676, at *4; see also Suguilanda v. Cohen & Slamowitz, LLP, 2011 WL 4344044, at *5 (S.D.N.Y.2011) (rejecting a claim based on a law firm’s use of the name “Cohen & Slamowitz, LLP” instead of “Law Offices of Cohen & Slamowitz, LLP” because the names “are substantially similar” and “using both of these names would not confuse the least sophisticated consumer into believing that these are two separate entities”); Chiang v. Verizon New England Inc., 2009 WL 102707, at *7 (D.Mass.2009) (“A least sophisticated consumer, exercising even a modicum of reasonableness, would not conclude that ‘Verizon Massachusetts’ was a third party debt collection agency completely unrelated to ‘Verizon’ or ‘Verizon New England, Inc.’ ”). Barclays is a creditor, not a debt collector, and the Act’s false name exception does not apply. This is an independent basis for dismissing the Marcottes’ Fair Debt Collection Practices Act claim against Barclays.