Judge David N. Hurd of the Federal District Court for the Northern District of New York has held that a law firm, Frederick J. Hanna & Associates, P.C., did not violate the FDCPA when it sent a dunning letter to an alleged debtor living in Syracuse stating that its client was prepared to “ consider all additional remedies,” even though the firm had no attorneys licensed to practice in New York at the time.
The disappointing decision aligns the Northern District with district courts in New Jersey, Delaware and Colorado, among other courts that have reached similar conclusions.
The plaintiff debtor alleged that the letter violated § 1692e(3) of the FDCPA which prohibits falsely representing that an individual is an attorney, or that a communication is from an attorney.
Judge Hurd stated, “Plaintiff does not dispute that defendant’s law firm is comprised of actual attorneys licensed to practice law in states other than New York. Therefore, defendant did not falsely represent its status as an attorney.”
More troubling, the court refused to let the plaintiff amend his complaint to allege a violation of § 1692e(5), which prohibits threatening to take any action that cannot legally be taken, or that is not intended to be taken. Judge Hurd said that amending the complaint would be futile because it still would not withstand a motion to dismiss, since the letter contained language saying that no lawyer had as yet reviewed the account and thus even the least sophisticated consumer would not perceive a threat. To find otherwise, said the judge, “would make any debt collection letter ever sent by an attorney an implied threat for the purposes of 1692e(5).”