correct the name of the creditor to whom the debt is owed also known as the current creditor credit controls initial collection letter to mr brian did not identify the current credit or credit controls letter to mr brian identified the original critical answer is chase bank usa in an identified coast department stores inc is the sly as acquiring it as such the collection mother did not comply with the fair debt collection practices act here the entity that extends credit is capital one bank not home department store the underlined that is a private brand credit card issued by a bank to be used that holds stores trace of the originating bank until two thousand and eleven but credit control acknowledges that there is a bank behind the account however at the time of the fault and at the time that the letter at issue was sent capital one on the debt not cold department store and cope apartments  effect is speaking on behalf of that of that creditor collecting the you could pay off calls and pay off the debt the person would think that maybe that that coles was that was the person that was the creditor  reasonable consumer would not necessarily know that coles was not the the creditor to whom the desert reasoning and the and at the point the that was the way the arrangement had been set up the arrangement ha set up in a manner where the cold was involved with the issuing but the debt was owned by capital one the debt was zero to capital one losing card holder a good card member agreement right yes and that's with the  the card holder agree the card member agreement identifies capital long as the creditor and issuer of the account that's correct your honor and the notice collection letter identifies chases the original credit grant additionally the private land credit credit card participation program the agreement between coal and capital one also identifies capital one as the owner and that can be found in appendix seventy five dollars and a few other that's correct they did in reaching a different conclusion which was the coles is a creditor because it was a sort of a joint a joint enterprise between the bank and call that's correct the dig the district court's decision but i mean i think the point is that somebody getting a notice of collection that didn't say colza just in the name of the bank would probably be confusing as it turns out to the on your call department store more information but you could still reference call you can still reference call but that doesn't satisfy the requirements of six thousand and ninety two g would have to reference capital one to you that's correct your honor misrepresentation and for that there's a materiality requirement right and the materiality requirement is that it's right here the information that the disclosure of cold is material for several reasons one being the interest  rate in order to charge the interest rate that's charged on the account at issue which is twenty six point four nine percent you need a national bank connected to the credit card so to the account this was the basis of the arrangement between colvin capital located in wisconsin it will be subject to a six year statue of limitations period as opposed to capital one which is located in virginia and will be subject to a three year statute minutes but it new york the information that's contained on the new york state courts website this maintained for pro se consumers or profane defendants and buys is that the new york will for a statute of limitations is determined based on the location of the creditor so we face i'm not sure your honor trace isn't involved in the account well but that's what well i'm saying in terms of materiality well it's mis information led to a two misunderstanding as to what the statute limitations is that might be material but if the information on the collection letter wouldn't have any impact on what the understood statute limitations was because chase is the same as capital ones then i think perhaps it wouldn't be material i think that would be  narrow view of the problem the statute requires the disclosure and if in and i don't know what the statute of limitations for traces but in this instance say for argument's sake it happened to be the same then we set forth a standard of law that is based on a narrow factual situation that this record didn't make any materiality fine and did the disregard just basically said there's nothing nothing false or misleading about this because calls is a creditor and that's what the letter s step back and look at the definition of creditor sixteen thousand and ninety two a for a creditor is simply a person to whom that is but that isn't that right there they're just a conduit well there is owed to the bank and the documents between the card member and well the application for the cards is that like credit or is th the debt is paid to coles in the name of colts ultimately ending up and this is set forth in the record as far as the revenue sharing agreement between coles and capital one  ended the credit in the st place that is a difficult question it's a try parte relationship is it so cold provides the goods coles process is the application the bank provides the money col provides the goods and then ultimately pays for the goods and then yes like from the customer no that is incorrect like from me it becomes part of a credit card that the bank does not that is the importance in the tri parks that's the importance of this tripartite a relationship goals in every stage of this relationship made those collection efforts the agreement requires coles to make those collections are that's what they're required to do but it's not clear to me why they're a creditor because they have to collect the money they're going to collecting the money this is their this is their cost of what they have to pay the bank which is the creditor they have to pay some of the money to the it doesn't it also doesn't call chase bank a creditor and call the original credit grantor in giving the complexities of this tripartite relationship i believe that is a better description for how coles operates here the payments were made at all times to coles in the name of coles the all servicing activities all phone calls all efforts all communications with the consumer would have been too cold for purposes of facilitating only coles purchases  d again the in the nd part of my argument your honor that i do need to address is that the agreement attached to the amended complaint requires quote capital one to operate in the name of actually coles has license its name for two capital one for purposes of capital one building a collection efforts you think that cobol's could bring a lawsuit against the plaintiffs in this case all collection activities all servicing activities in the agreement to coles cold is the only point of contact with the consumer in connection with this case and in the case of mcguire v capital services this court has decided has suggested that creditors it is appropriate at times for creditors to use doing business as names so long as those names existed from the beginning of the credit relationship completely separate names in the business so it was capital services i believe in maguire was doing business as collection services and it was that court found against the collector in that case but the reasoning they found against the collector is because they used the original creditor use this secondary name way after the credit relationship to start so it was important to the court that you  can't just switch names half way through here the coles name was literally in the opening credit agreement it's a coles credit card agreement by definition and so if you go back to the statutory definition of sixty what i mean by that if you look at the excess in six hundred and ninety two a for the definition creditor if you look at the exception to the definition of predator it contemplates being accepted from that definition of creditor a 's a sign to chase and co and in this court's decision and co and the court found that greentree the mortgage servicer never known or of the debt qualified for that under that exception to the definition creditor as an assigning years of service or because it took that after the fall into one of the recent decision of this court so in my mind if the court is applying the exception to not owner servicers because they take and that's after default certainly the definition of creditor could apply if they take the assignment or servicing activities prior to default and i think cohen supports that notion  conveys the information that this is the creditor to whom the debt is and we have cited a handful of believe of district court decisions most of them recent which have decided that either the use of our client or even in some cases not no descriptor at all when you say we're collecting this account for or a chase bank that the least sophisticated consumer would understand that a debt collector collects on behalf of chase ba well that's interesting because the statute refers to the current credit the person does not to a person that is correct and it's very important to look at this statutory provision six hundred and twelve g in the congressional history  and a congressional history behind it when making the determination of who should be supplied in that type of context this court is that when you interpret whether sixteen has been satisfied you simply look at how police sophisticated consumer would view that and whether it was clearly conveyed and when you're talking about the g notice it's the initial validation process it only goes in the initial letter so that all the purpose in the set for a purpose was to put the consumer in the legislative history supports it put the consumer on notice of what the dead ends so they know whether to dispute that in the thirty days or not to dispute that that it doesn't it's not about putting them on  far because of the difficult and very complicated relationship holes in capital one in this type of tripartite retail relationship or coles this is more than just the standard one where the bank takes over the billing this is coles you know every single point of the stage it's even to hiring the debt collectors and going through the process they take the phone calls the statements are issued in the names of coles the billing records in the name  coles dot com to pay your calls and which is even a better example of what you're afraid you do not log in to capital one or chase bank and the consumer has no interaction with them so when you're asking whether the consumer and by the way the g or whether they should just pay it or whether they you know sixty nine dollars was because there's a rd party debt collector sending a notice that the consumer may not recognize and the purpose of it was was to allow the consumer simply to say oh i remember that and coles is the main entity here which triggers that i bought a pair of blue jeans whole also thinking on the consumer which is exactly what sixty nine to ga and its universe is intended to the course but what's the reason for including chase bank on this year and i don't i don't know the reason for including chase bank other than it was probably an attempt to argument in this case and so not only are they the same entities by contract and buys by assignment of their names to each other and trademarks are the same entities coles and capital one  tree had the right to file suit in its own name to enforce that that's not the situation here neither the entities identified on the collection matter could have filed suit and it's in their own name to enforce the pinus that  filed to within that brings me to an argument i was going to put to the end of my time the agreement between holding capital one recognizes coles and coles charge the letter identifies kohl's department store think it's a totally different entit entity that councils referring to as being part is being the d b a of capital one so that creates another layer of confusion with respect to council i'm sorry again with respect to limitation involves some potential of a consumer being so actually the statue of limitations is far more important and that a consumer receiving a collection communication on a debt that is in fact bar by the statue of limitation could inadvertently make a payment reset the statue of limitations so it's not a matter of waiting on a possibility of a lawsuit the statue of limitations is in fact something that's important when a consumer is evaluating or reviewing a collection letter wants to such limitations and if it's cold if it's cold it will be a six year statue of limitation and becomes culver's in wisconsin capital one it will be three years because capital one is located in virginia another of the lease sophisticated consumer standard counsel purports to argue that the least a fifty k to consumer would know about the statute of limitations or interest rates and therefore the disclosure is not  required st that's not correct and consumer having access to the internet would find information on both the statute of limitations more as it applies to new york's jurisdictional role as well as information on the interest rate information  statue of limitations can be found on the new york state court website intended for pro ses additionally there is another website by the new economy private that provides common defenses to credit lawsuits that also advis is directed to new york consumers and it also buys into the new york rules we're saying is we're not saying trade out the information we're saying a description of the debt does not satisfy six thousand and ninety two dollars g s requirement to identify the current creditor so we're seeing an appropriate my position is an appropriate disclosure would penalty up to a one thousand dollars again the parties never get engaged in discovery there could be a bonfire defense i don't know that we this happened very early in the case but yes it will be statutory damages two thousand dollars or five hundred thousand dollars in the case of a class one percent of the defense sorry thank you will be their decision we had one other matter that was scheduled for argument but