1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _____________________________

5

6 August Term, 2002

7

8 (Argued: November 12, 2002 Decided: February 25, 2003)

9

10 Docket No. 02-7017

11

12 _____________________________

13

14 ARTHUR MILLER, on behalf of himself and all others similarly situated,

15

16 Plaintiff-Appellant,

17

18 v.

19

20 WOLPOFF & ABRAMSON, L.L.P., UPTON, COHEN & SLAMOWITZ, and NATIONAL

21 ATTORNEY NETWORK, INC., successor to Wallace & de Mayo, a partnership and wholly22 owned subsidiary of TSYS Total Debt Management, Inc., individually and as joint venturers and

23 co-conspirators with each other,

24

25 Defendants-Appellees.

26

27

28 _____________________________

29

30

31 Before: KEARSE, McLAUGHLIN, and SOTOMAYOR, Circuit Judges.

32

33 _____________________________

34

35

36 Appeal from a judgment of the United States District Court for the Eastern

37 District of New York (Reena Raggi, then-District Judge) granting defendants’ motions to dismiss

38 and for summary judgment on the grounds that plaintiff failed to state a claim under the Fair

39 Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Because we conclude that

40 the grant of summary judgment without allowing plaintiff an opportunity to conduct discovery
2

1 was premature, we vacate that portion of the decision granting summary judgment on plaintiff’s

2 claim that defendants violated the FDCPA by sending debt collection letters purporting to be

3 from attorneys without any meaningful attorney involvement in the sending of those letters. We

4 affirm the district court’s grant of the motions to dismiss the remainder of plaintiff’s claims,

5 holding that plaintiff’s claim regarding the alleged splitting of attorney fees with a non-attorney

6 referral network fails to state a claim under the FDCPA and that the challenged collection letter

7 was neither misleading nor deceptive within the meaning of the FDCPA.

8 Vacated in part, affirmed in part, and remanded.

9 _____________________________

10

11 CHRISTOPHER V. LANGONE, Chicago, IL (Brian L.

12 Bromberg, New York, NY, Lance Raphael, Chicago, IL, on

13 the brief), for plaintiff-appellant.

14

15 THOMAS A. LEGHORN, Wilson, Elser, Moskowitz,

16 Edelman & Dicker, LLP, New York, NY (Brett A. Scher,

17 of counsel), for defendants-appellees Wolpoff & Abramson

18 and Upton, Cohen & Slamowitz.

19

20 KEVIN G. McMORROW, Ahmuty, Demers & McManus,

21 Albertson, NY (Neil H. Angel, on the brief), for defendant22 appellee National Attorney Network, Inc.

23

24 _____________________________

25

26 SOTOMAYOR, Circuit Judge:

27

28 Plaintiff-appellant Arthur Miller appeals the grant of defendants’ motions to

29 dismiss and for partial summary judgment by the United States District Court for the Eastern

30 District of New York (Reena Raggi, then-District Judge). Plaintiff claims that defendants31 appellees, law firms Wolpoff & Abramson, L.L.P. (“W&A”), Upton, Cohen & Slamowitz
3

1 (“UC&S”), and the National Attorney Network (“NAN”), a non-attorney referral network that

2 coordinates the practice of debt collection, violated the Fair Debt Collection Practices Act

3 (“FDCPA”), 15 U.S.C. § 1692 et seq., by sending debt collection letters on attorney letterhead

4 without any meaningful attorney involvement in the decision to send those letters, by attempting

5 to collect attorneys’ fees that were to be shared with NAN, and by sending a debt collection letter

6 that was misleading or deceptive. 

7 For the reasons that follow, we hold that the grant of summary judgment on

8 plaintiff’s claim that W&A and UC&S failed to conduct a meaningful review of plaintiff’s file

9 before sending the debt collection letters on attorney letterhead was premature. We affirm the

10 dismissal of plaintiff’s claim that UC&S’s efforts to collect attorneys’ fees violates the FDCPA’s

11 prohibition on attempting to collect an amount not expressly authorized by the agreement

12 creating the debt or by law. We hold that the underlying credit card agreement permitted the

13 collection of attorneys’ fees and that the fact that UC&S later may have intended to share those

14 fees with a non-lawyer does not render the attempt to collect such fees illegal, even if that act of

15 sharing might violate New York professional ethics rules. Finally, we hold that plaintiff’s claim

16 that language in W&A’s original collection letter overshadows or contradicts the validation

17 notice was properly dismissed because the notice clearly advises the consumer of her FDCPA

18 rights and is neither overshadowed nor contradicted by the language on the front of the letter. 

19 Accordingly, we vacate in part, affirm in part, and remand.

20
1

 The facts described below are taken from plaintiff’s complaint and are supplemented by

the information alleged in affidavits submitted by the defendant attorneys in support of their

motions for summary judgment. The Court is aware that plaintiff has not yet had an opportunity

to conduct discovery, and recognizes that discovery may reveal that the facts as alleged by

defendants are untrue. This summary, therefore, is not intended to preclude any such showing by

plaintiff.

4

1 BACKGROUND

2

I. Factual Background13

4

5 Plaintiff Arthur Miller entered into a credit card agreement with Lord & Taylor. 

6 After Miller refused to pay $1618.14 owed on the card, he received a series of letters from

7 defendants W&A and UC&S in connection with their attempts to collect on the debt.

8 W&A regularly represents Lord & Taylor on collection matters, and Lord &

9 Taylor sent the Miller file to W&A for collection assistance. On February 23, 2000, Ronald

10 Abramson, a partner at W&A, reviewed the “file,” which contained the following information:

11 Miller’s full name, social security number, current address, home and work phone numbers, the

12 Lord & Taylor account number, the date the credit account was opened, the date of the last

13 charge to the account, the date the account was charged off, the account balance, and “a synopsis

14 of [Lord and Taylor’s] recent customer service notes regarding their efforts to resolve Mr.

15 Miller’s account prior to forwarding the matter to [W&A] for collection.” After reviewing this

16 file, Abramson claims he “activated a print command on Wolpoff & Abramson’s computer

17 system and W&A’s initial collection letter . . . was printed and mailed to the Plaintiff on

18 February 25, 2000.”

19 The February 25, 2000 letter identified W&A as “Attorneys in the Practice of

20 Debt Collection (A National Attorney Network Firm).” The letter demanded payment of
5

1 “$1618.14 (including applicable contractual charges),” noted that it was sent with regard to May

2 Department Stores/Lord & Taylor, and stated:

3 Please be advised that we represent the above-named creditor who claims

4 you have a delinquent balance as stated above. After you have read the important

5 notice on the reverse side of this letter, if appropriate please call our office to

6 resolve this matter.

7

8 When paying the balance in full or if you are unable to call our office,

9 check one of the options below and return the bottom portion of this letter in the

10 self-addressed envelope provided for your convenience. 

11

12 Very truly yours,

13

14 WOLPOFF & ABRAMSON, L.L.P.

15

16 At the bottom of the letter was a “detach and return” section listing four options

17 with boxes for the consumer to check:

18 [ ] I mailed a check on _________

19

20 [ ] Here is payment in full made payable to the creditor. Thanks for waiting.

21 (If paying by Western Union Quick Collect, for your convenience please

22 see payment instructions on reverse side.)

23

24 [ ] Enclosed is payment in full made payable to the creditor, but it’s post25 dated a few days.

26 (Not applicable for residents of Massachusetts.)

27

28 [ ] I cannot call you during the day. 

29 Please have someone call me. My telephone number during the day is

30 _________

31 My telephone number in the evening is ___________

32

33 ***This is an attempt by a debt collector to collect a debt and any information obtained

34 will be used for that purpose.***

35

36 * * * BEFORE RESPONDING TO THIS LETTER * * * 

37 SEE REVERSE SIDE FOR IMPORTANT NOTICE

38

39 On the back of the letter, in larger print than the text on the front of the letter, the
6

1 following notice was printed:

2 * * * IMPORTANT NOTICE * * * 

3

4 You are entitled to certain information that sets forth your rights and our

5 obligations under the law. The law provides that: (a) Within five (5) days after

6 the initial communication with a consumer in connection with the collection of

7 any debt, we shall, unless the following information is contained in the initial

8 communication or the consumer has paid the debt, send the consumer a written

9 notice containing (1) the amount of the debt, (2) the name of the creditor to whom

10 the debt is owed, (3) unless a consumer, within thirty (30) days after receipt of this

11 notice, disputes the validity of the debt, or any portion thereof, the debt will be

12 assumed to be valid by this office, (4) if the consumer notifies this office in

13 writing within the thirty day period that the debt, or any portion thereof, is

14 disputed, this office will obtain verification and a copy of such verification will be

15 mailed to the consumer by this office, and (5) upon the consumer’s written request

16 within the thirty day period, this office will provide the consumer with the name

17 and address of the original creditor if different from the current creditor. (b) If the

18 consumer notifies this office in writing within the thirty day period that the debt,

19 or any portion thereof, is disputed, or that the consumer requests the name and

20 address of the original creditor, we shall cease collection of the debt, or any

21 disputed portion thereof, until this office obtains verification of the debt or the

22 name and address of the original creditor, and a copy of such verification, or name

23 and address of the original creditor, is mailed to the consumer by this office. (c)

24 The failure of a consumer to dispute the validity of a debt under the section may

25 not be construed by any court as an admission of liability by the consumer.

26

27 This is an attempt by a debt collector to collect a debt and any information

28 obtained will be used for that purpose. 

29

30 On April 26, 2000, Miller was sent a second letter, also on W&A letterhead,

31 informing him that:

32 All attempts to contact you concerning the above account have proven to be

33 unsuccessful. It is important that you call us at 301-961-7620, or toll free at 1-

34 800-678-7720 to discuss this matter. We are pleased to inform you that if you call

35 our office within ten (10) days from the date of this letter, YOU MAY QUALIFY

36 FOR A LARGE DISCOUNT ON THE ABOVE MATTER. This is a limited time

37 offer only; you must contact our office within this ten (10) day period. 

38

39 The letter included a “payment coupon” portion to detach and return with payment.
7

1 On May 31, 2000, W&A sent a third letter advising Miller that “[o]ur client has

2 authorized this office to make an extraordinary offer to settle your past-due account with them. 

3 We have been permitted to accept $1294.51, which represents 80% of the outstanding balance as

4 settlement in full of your obligation.” The letter informed Miller that he had until June 28, 2000

5 to make a lump sum payment in full, and advised him that if he could not make the entire

6 payment by that date, “please call our office and we will be happy to make reasonable payment

7 arrangements with you on the balance.” The letter also instructed that any check or money order

8 should be made payable to the client but sent to W&A’s office with the enclosed payment

9 coupon.

10 Plaintiff did not respond to any of these letters, and on July 12, 2000, plaintiff’s

11 file was referred through NAN to UC&S with instructions to initiate litigation promptly. On July

12 18, 2000, UC&S sent plaintiff a letter demanding payment of $1676.69, and stating in pertinent

13 part: “Please be advised that we are the attorneys for the above creditor. The above referenced

14 account has been forwarded to us for collection. Please contact this office to arrange for

15 payment.” This letter, unlike the first three W&A letters, was hand-signed by Mitchell G.

16 Slamowitz, Esq. On August 25, 2000, Attorney Slamowitz filed a verified complaint in Queens

17 County court seeking recovery of $1618.14 and attorneys’ fees of $323.63 for Miller’s alleged

18 breach of the credit card agreement with Lord & Taylor. Slamowitz claims that he determined

19 that the underlying credit card agreement authorized payment of attorneys’ fees before he filed

20 the complaint.

21 According to plaintiff, under the agreement between NAN and UC&S, NAN

22 would have been entitled to 3% of any amount ultimately collected by Lord & Taylor as a result
2

 Plaintiff eventually settled the underlying suit and it is undisputed that he paid no

attorneys’ fees to UC&S because Lord & Taylor obtained new counsel after plaintiff initiated this

lawsuit.

8

of the litigation.21

2 II. Proceedings Below

3 On February 23, 2001, Miller filed suit against W&A, UC&S and NAN, alleging

4 that defendants, individually and as joint-venturers and co-conspirators, violated the FDCPA (1)

5 by sending debt collection letters on attorney letterhead without meaningful review by any

6 attorney of the circumstances surrounding plaintiff’s alleged debt, (2) by attempting to collect

7 attorneys’ fees that were to be shared with NAN as a referral fee in violation of state professional

8 ethics rules, and (3) by mailing a letter that would confuse the “least sophisticated consumer” as

9 to his or her rights. Plaintiff brought these claims as a putative class action.

10 Three months later, before any discovery was conducted, defendants moved to

11 dismiss or alternatively for summary judgment. The motions relied in part on affidavits

12 submitted by Ronald Abramson, Jay Scheiner, Laurence C. Abramson, Ronald S. Canter, and

13 Mitchell Slamowitz, attorneys at W&A and UC&S involved with sending the debt collection

14 letters and initiating the state court proceeding against Miller. Plaintiff filed a responsive letter

15 motion on June 20, 2001, seeking denial of the motions without prejudice under Fed. R. Civ. P.

16 56(f), or alternatively, either an expedited discovery schedule or modification of the briefing

17 schedule to permit him time to conduct discovery, including deposing the attorney affiants,

18 before responding to the motions. The letter explained that notwithstanding defendants’ reliance

19 on affidavits supporting the motions for summary judgment, “[d]efendants are resisting our

20 efforts to obtain depositions from those affiants that they are using in their motion papers.” On
9

1 July 3, 2001, the district court denied plaintiff’s motion and advised that “[t]o the extent the

2 plaintiff wishes to seek relief under Rule 56(f), he should do so in his formal opposition to the

3 pending motions, in a manner compliant with the Rule’s requirements.” The district court did

4 not address the alternate relief sought by plaintiff. Consistent with this order, plaintiff submitted

5 a Rule 56(f) affidavit from his counsel in opposition to summary judgment detailing the areas

6 where discovery was sought and explaining that defendants had resisted discovery and, as a

7 result, that no discovery had been taken to date. 

8 Following oral argument on November 9, 2001, the district court granted from the

9 bench defendants’ motions to dismiss or alternatively for summary judgment. First, the district

10 court held as a matter of law that the attorney defendants had conducted a sufficiently meaningful

11 review before sending the collection letters. Specifically, the court found, based on the affidavits

12 submitted by the attorney defendants in support of the motions, that “these individuals did more

13 than just peruse a debt notice. Each of them has stated under oath that they reviewed the file and

14 confirmed that the debt was then outstanding – this would be the most important thing to ensure

15 that there was not stale information – to ensure that the correct person’s account was at issue.”

16 Based on this representation, the district court held that “the lawyer has done what would be

17 expected of a licensed professional under the circumstances . . . .” Denying plaintiff’s request

18 under Rule 56(f) for additional discovery, the court held:

19 Nothing I’ve heard today suggests that there would be any benefit in having the attorneys

20 deposed. The parties’ dispute is over whether they needed to do more before they could

21 use their letterhead under the law, and I’m satisfied from the cases cited by the defendants

22 in their briefs that these lawyers did what was expected of them under the law for them to

23 use their letterhead to send out the notices.”

24

25 Next, assuming for purposes of the motions that NAN would have received its fee
10

1 from UC&S’s fee recovery, rather than from Lord & Taylor’s total recovery, the district court

2 found that there was a “serious question” whether plaintiff had standing because “we know that

3 the consumer did not pay the debt under these circumstances.” The court went on to consider

4 whether the practices alleged here could be found to have violated the FDCPA, in that “the

5 collection of this amount [the $323.63 sought by UC&S in the state court suit] was either not

6 expressly authorized by the agreement or not permitted by law.” Noting that the agreement

7 between Miller and Lord & Taylor expressly provides that if a debt had to be collected through

8 litigation, the consumer might be liable for the debt and reasonable attorneys’ fees, the court

9 found that UC&S’s 20% contingency fee amounted to only $322.80, a reasonable fee as a matter

10 of law, and the court concluded that sharing $40 of this fee with NAN was not contrary to the

11 agreement. The district court also rejected plaintiff’s argument that the payment of fees to NAN

12 was an improper referral fee, stating that “[i]f there is any problem in this referral argument, it is

13 properly addressed not by a jury awarding statutory fees or attorney’s fees in a federal action for

14 fair debt collection practice, but by the disciplinary committee of the New York State Supreme

15 Court of Appeals.”

16 Finally, the district court rejected plaintiff’s argument that the first dunning letter

17 sent by W&A was impermissibly confusing because the statement that the debtor could call the

18 sender with questions “overshadowed” the notice on the back of the letter advising the debtor

19 that any dispute to the debt must be in writing. The court held: 

20 It seems to me beyond dispute resolvable as a matter of law that the actual

21 validation notice is complete in its advice to a consumer, even the least

22 sophisticated consumer, that to dispute the debt, actions have to be taken in

23 writing and they will in turn trigger other actions by the debt collector . . . . The

24 suggestion made to this court is that because the attorney also suggested in the
11

1 cover letter that the recipient of the letter could call the law firm, in other words,

2 actually deal with a human being, that somehow this violated federal law. This is

3 a tortured reading of the letter that could not be found by any reasonable fact

4 finder. The letter’s reference plainly makes clear to the recipient that it is the

5 attached validation notice that is the important document and that the call can be

6 made, if necessary. One would understand this to mean if there are further

7 questions, if you need any explanations, but not that the notice about the writing

8 can be ignored.

9

10 Miller timely appealed both the July 3, 2001 Order denying his request for

11 discovery and the November 9, 2001 Order granting the motions to dismiss or alternatively for

12 summary judgment. 

13 DISCUSSION

14 I. Standard of Review

15 Our standard of review for both motions to dismiss and motions for summary

16 judgment is de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (motion

17 to dismiss); Mario v. P&C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir. 2002) (summary

18 judgment). On a motion to dismiss or for judgment on the pleadings we “must accept all

19 allegations in the complaint as true and draw all inferences in the non-moving party’s favor.” 

20 Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). A case

21 should not be dismissed unless the court is satisfied that the complaint cannot state any set of

22 facts that would entitle the plaintiff to relief. Id. On a motion for summary judgment, all factual

23 inferences must be drawn in favor of the non-moving party. Lane Capital Mgmt., Inc. v. Lane

24 Capital Mgmt., Inc., 192 F.3d 337, 343 (2d Cir. 1999). Summary judgment is appropriate only if

25 the moving party shows that there are no genuine issues of material fact and that the moving

26 party is entitled to judgment as a matter of law. Id. Finally, we review the denial of leave for
12

1 discovery under Fed. R. Civ. P. 56(f) for abuse of discretion. Belfiore v. N.Y. Times Co., 826

2 F.2d 177, 183 (2d Cir. 1987).

3 II. The False Representation that a Debt Collection Letter is “From an

4 Attorney”

5

6 The FDCPA creates a general prohibition against the use of “false, deceptive, or

7 misleading representation or means in connection with the collection of any debt.” 15 U.S.C.

8 § 1692e. Section 1692e contains a non-exhaustive list of practices within the purview of this

9 prohibition, including “[t]he false representation or implication that any individual is an attorney

10 or that any communication is from an attorney.” Id. § 1692e(3). Although there is no dispute

11 that W&A and UC&S are law firms, or that the letters sent by those firms were “from” attorneys

12 in the literal sense of that word, some degree of attorney involvement is required before a letter

13 will be considered “from an attorney” within the meaning of the FDCPA. See, e.g., Clomon v.

14 Jackson, 988 F.2d 1314, 1321 (2d Cir. 1993) (“[T]he use of an attorney’s signature on a

15 collection letter implies that the letter is ‘from’ the attorney who signed it; it implies, in other

16 words, that the attorney directly controlled or supervised the process through which the letter was

17 sent . . . . [T]he use of an attorney’s signature implies — at least in the absence of language to the

18 contrary — that the attorney signing the letter formed an opinion about how to manage the case

19 of the debtor to whom the letter was sent.”). 

20 Here, plaintiff claims that the letters sent by W&A and UC&S were form letters

21 generated by a computerized debt collection system without any meaningful attorney

22 involvement in the process. Plaintiff also argues that the district court abused its discretion by

23 refusing to allow him to conduct any discovery to enable him to respond to the motions for
13

1 summary judgment while simultaneously relying on defendants’ affidavits to conclude that a

2 meaningful review of the file was conducted by W&A and UC&S. For the reasons that follow,

3 we conclude that the grant of summary judgment on this record was premature.

4 Defendants moved for summary judgment on May 25, 2001. Plaintiff’s counsel

5 informed the district court by letter dated June 20, 2001, that he had attempted to depose the

6 witnesses on whose affidavits defendants’ motions were based and that defendants were

7 “resisting our efforts to obtain [those] depositions.” In response, defendants’ counsel informed

8 the district court only that it had provided similar affidavits to counsel before the lawsuit was

9 filed and that plaintiff’s counsel was aware that defendants intended to move for early dismissal

10 of the claims. Defendants do not dispute that plaintiff had no opportunity to depose the lawyers

11 whose affidavits provided the basis for the district court’s decision. In response to plaintiff’s

12 June 20, 2001 request for additional time to conduct discovery, the district court “denie[d]

13 plaintiff’s requests and order[ed] the parties to adhere to the previously approved briefing

14 schedule,” noting that if plaintiff wished to file a Rule 56(f) affidavit, he could do so in his

15 formal opposition to summary judgment. 

16 Heeding the district court’s advice, plaintiff’s counsel filed an affidavit detailing

17 the discovery that was sought and the unsuccessful attempts that had been made to obtain that

18 information. In particular, the Rule 56(f) affidavit explained that plaintiff sought four categories

19 of discovery:

20 A) Written and oral discovery to determine and confirm the nature and extent of

21 the relationship between Defendants . . . . This information is necessary and

22 relevant to the issue of joint venture.

23

24 B) Written and oral discovery to determine the nature of the fee-splitting
14

1 arrangement between Defendants and NAN . . . . 

2

3 C) Written and oral discovery to determine the extent of review made by

4 Defendants of Plaintiff’s file prior to sending collection letters and initiating

5 litigation, including any written materials related to review policies and

6 depositions of Mr. Slamowitz, Mr. Roland M. Abramson, and Mr. Scheiner. This

7 information is necessary and relevant to the issue of whether Defendants’ review

8 of Plaintiff’s file was meaningful.

9

10 D) Written and oral discovery to determine the author and/or source of the debt11 collection [letters] sent to consumers by NAN member law firms . . . . This

12 information is necessary and relevant to the issue of whether Defendants

13 misrepresent who is sending the debt-collection letters (an attorney or a non14 attorney sending letters on attorney letterhead).

15

16 (Emphasis added). The affidavit further explained that plaintiff had attempted to obtain the

17 information through public information sources, but that the specific information sought

18 appeared to be within defendants’ sole possession and knowledge. Plaintiff’s counsel also stated

19 that plaintiff had been “unable to obtain the specific information listed above because Defendants

20 have refused to cooperate.”

21 Defendants argue that the district court properly denied the request for discovery. 

22 First, they contend that because the initial letter did not comply with Rule 56(f), the district court

23 properly denied it. While the letter did not comply with the Rule, it did promptly request an

24 extension of the briefing schedule to permit time to conduct discovery, and, contrary to

25 defendants’ assertion, noted with specificity that plaintiff sought, inter alia, to depose the three

26 affiants. We have previously observed that “when alerted to a forthcoming motion for summary

27 judgment, a party wanting more time for discovery should seek, through negotiation with the

28 other party and, if necessary, through application to the district court, an appropriate discovery

29 schedule.” Burlington Coat Factory Warehouse Corp. v. Esprit de Corp, 769 F.2d 919, 927-28
15

1 (2d Cir. 1985). While plaintiff here did not move for a discovery schedule until after the

2 summary judgment motion was filed, it appears from the record that he did so within a month of

3 receiving defendants’ motions, which were filed only three months after the complaint was filed. 

4 Thus, we do not fault plaintiff for requesting expedited discovery or a modified briefing schedule

5 when alerted to the basis for defendants’ motions for summary judgment.

6 Defendants also argue that plaintiff has waived appeal of the discovery issue by

7 failing to “challenge[] any action taken by the lower court pursuant to his Rule 56(f) affidavit in

8 his notice of appeal . . . .” W&A/UC&S Br. at 29. Plaintiff appealed both the July 3, 2001 Order

9 denying the letter request for time to conduct discovery and the summary judgment ruling, which

10 granted defendants’ motions to dismiss or for summary judgment over plaintiff’s objection that

11 he needed additional time to conduct discovery to respond to the motions. The test for

12 determining the sufficiency of a notice of appeal is “whether it is objectively clear that a party

13 intended to appeal.” Fed. R. App. P. 3(c) advisory committee note (1993 Amendments). Thus,

14 as it is clear from the face of the notice of appeal that plaintiff challenged both the denial of

15 additional time to conduct discovery and the grant of defendants’ motions to dismiss or

16 alternatively for summary judgment, he cannot be said to have waived this issue on appeal. 

17 Finally, defendants contend that the affidavit focused primarily on the relationship

18 between NAN and the two law firms, and that “[t]he only portion of counsel’s affidavit relating

19 to the meaningful involvement issue asked for discovery as to ‘the extent of review made by (the

20 attorneys) of Plaintiff’s file prior to sending collection letters and initiating litigation.’”

21 W&A/UC&S Br. at 30. Defendants maintain that the affidavit was insufficient because it “did

22 not explain how the facts sought to be discovered would create a genuine issue of material fact,
16

1 particularly where attorney affidavits explaining the nature of both firms’ review of Miller’s

2 account were already in the record.” Id. We disagree.

3 “[A] party resisting summary judgment on the ground that it needs discovery in

4 order to defeat the motion must submit an affidavit showing ‘(1) what facts are sought [to resist

5 the motion] and how they are to be obtained, (2) how those facts are reasonably expected to

6 create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4)

7 why the affiant was unsuccessful in those efforts.’” Gurary v. Winehouse, 190 F.3d 37, 43 (2d

8 Cir. 1999) (quoting Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995)) (alteration in

9 original). Here, the affidavit sought discovery in four discrete categories, the last two of which

10 were directly related to the “meaningful involvement” claim at issue here. The affidavit

11 explained that plaintiff required information about the extent of defendants’ review of the file. 

12 As this was the critical issue in plaintiff’s claim that sending the letter on attorney letterhead

13 violated the FDCPA, these missing facts reasonably could have created a genuine issue of

14 material fact to defeat summary judgment. Moreover, defendants’ contention that the affidavit

15 was silent as to the steps taken to obtain additional information without discovery ignores the

16 fact that the affidavit stated that the information sought was within defendants’ possession and

17 that defendants had resisted discovery. Inasmuch as plaintiff clearly explained that he sought to

18 depose the three affiants, this satisfies the third and fourth requirements of Rule 56(f). Thus, the

19 affidavit substantially complied with the requirements of Rule 56(f). 

20 While the affidavit did not specify with precision the information plaintiff

21 believed he could learn from deposing the three affiants, plaintiff cannot be faulted for failing to

22 advise the district court precisely what information he might learn during discovery given that the
17

1 facts sought were exclusively within defendants’ possession and that he had no previous

2 opportunity to develop the record through discovery. See Meloff, 51 F.3d at 374 (reversing grant

3 of summary judgment in an employment discrimination case where plaintiff had insufficient

4 opportunity “to explore the motivations and reasons for terminating her employment”); cf.

5 Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001) (observing that where the district

6 court denied the plaintiff any opportunity to conduct discovery and considered a partial summary

7 judgment motion filed two months after the filing of the complaint, “[f]aulting [plaintiff] for

8 failure to make a showing of . . . matters that would . . . be beyond her personal knowledge [] was

9 incompatible with the court’s denial of discovery”). 

10 “Fed. R. Civ. P. 56(f) provides, as interpreted by court opinions, that when a party

11 facing an adversary’s motion for summary judgment reasonably advises the court that it needs

12 discovery to be able to present facts needed to defend the motion, the court should defer decision

13 of the motion until the party has had the opportunity to take discovery and rebut the motion.” 

14 Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir. 2001). 

15 Accordingly, we have held that summary judgment should only be granted if “after discovery, the

16 nonmoving party has failed to make a sufficient showing on an essential element of [its] case

17 with respect to which [it] has the burden of proof.” Hellstrom v. United States Dep’t of Veterans

18 Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (internal quotation marks omitted) (alterations in

19 original). “Only in the rarest of cases may summary judgment be granted against a plaintiff who

20 has not been afforded the opportunity to conduct discovery.” Id.; accord Trebor Sportswear Co.

21 v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (“Under Rule 56(f), summary judgment

22 may be inappropriate where the party opposing it shows . . . that he cannot at the time present
3

 W&A partner Ronald Abramson stated that he reviewed plaintiff’s “file” after it was

referred by Lord & Taylor before sending the initial letter. Mr. Abramson averred that the “file”

contained plaintiff’s name, social security number, current address and home and work phone

numbers, the account number, the date the account was opened, the date of the last charge on the

account, the date the account was charged off and the account balance, as well as “a synopsis of

[Lord & Taylor’s] recent customer service notes regarding their efforts to resolve Mr. Miller’s

account prior to forwarding the matter to our firm for collection. These notes included a

reference to the fact that Mr. Miller had offered a reduced payment on his account and that Lord

& Taylor refused to accept less than what was owed.” The affidavit does not, however, state

whether the file contained the payment history, if any, on the account or a complete record of

Lord & Taylor’s customer service notes. 

18

1 facts essential to justify his opposition. The nonmoving party should not be ‘railroaded’ into his

2 offer of proof in opposition to summary judgment. The nonmoving party must have had the

3 opportunity to discover information that is essential to his opposition to the motion for summary

4 judgment.” (internal quotations and citations omitted)). 

5 The district court concluded that no discovery was necessary in this case because

6 “[t]he parties’ dispute is over whether they needed to do more before they could use their

7 letterhead under the law, and I’m satisfied from the cases cited by the defendants in their briefs

8 that these lawyers did what was expected of them under the law for them to use their letterhead

9 to send out the notices.” The district court held that the fact that Mr. Abramson had “checked

10 that his client, Lord & Taylor’s, last records showed that [the] debt was still outstanding”

11 satisfied defendants’ obligations. Given the very limited nature of the material Mr. Abramson

12 claimed to have reviewed, however, the district court’s conclusion could only be based on the

13 fact that Lord & Taylor had reported the debt for collection to W&A with an outstanding balance

14 and Lord & Taylor’s “synopsis” of its “recent” customer service notes indicated that plaintiff had

offered a reduced payment, which had been refused.315 

16 While plaintiff asks us to declare a minimum standard requiring attorneys to
19

1 review a copy of the contract, a credit report, and a full payment history or statement of account

2 to satisfy Clomon’s requirement of meaningful attorney involvement, we decline to do so on the

3 record here, in part because there may be circumstances where, following discovery, it becomes

4 clear that the attorney’s familiarity with the client’s contracts and practices would negate the

5 need to review some if not all of the documents plaintiff seeks to require. For example, an

6 attorney and client could have established a practice whereby the attorney has specified that the

7 entire payment history is to be included in the summary provided by a client. On this

8 undeveloped record, however, it suffices for us to hold that merely being told by a client that a

9 debt is overdue is not enough. See Nielsen v. Dickerson, 307 F.3d 623, 638 (7th Cir. 2002)

10 (holding that the FDCPA was violated where the attorney “knew nothing about the debtor and

11 her potential liability beyond what [the client] had conveyed to him; and [the client] provided

12 [the attorney] only the bare information that [he] required in order to complete the blanks in his

13 form letter”).

14 Defendants argue that their affidavits make clear that they satisfied the FDCPA’s

15 requirement of meaningful attorney involvement. These affidavits, however, lack sufficient

16 detail to permit the district court or us to determine that their review was sufficient as a matter of

17 law. For example, Mr. Abramson stated that: 

18 I was the partner who personally reviewed our client’s file on [Miller] after it’s [sic]

19 referral to W&A. No collection activity can take place until a partner reviews our client’s

20 file and exercises his or her independent professional judgment that collection is

21 appropriate. At that time, the partner must personally execute the print command of the

22 letter which will be sent to the debtor. 

23

24 This conclusory language does not describe what information Abramson reviewed to permit him

25 to exercise his “independent professional judgment.” We must assume for purposes of this
20

1 motion for summary judgment, however, that it was no more than the very limited information

2 described in his initial affidavit. Thus, while Abramson claimed that W&A attorneys reject or

3 suspend debt-collection referrals “for a multitude of reasons including the matter falling outside

4 of the applicable statute of limitations, the debtor filed bankruptcy making the obligation

5 unenforceable, and the information in the client record is inconsistent or incomplete,” and

6 asserted that “[a]fter my personal review of Mr. Miller’s file, I determined that collection was, in

7 fact, appropriate and that none of the aforesaid reasons for suspension or rejection of the referral

8 was appropriate,” the information Abramson initially claimed that he reviewed would not enable

9 him to determine whether Miller was in bankruptcy, whether the information in the record was

10 inconsistent or incomplete, whether Miller was or was not obligated to pay the debt, or whether

11 Miller was the correct debtor. Similarly, Abramson’s assertion that “attorneys at W&A regularly

12 reject client referrals after a review of the client file indicates the debtor is not obligated to pay

13 the account, the alleged debtor is not the correct debtor as well as a determination from an

14 attorney at W&A that additional information is necessary to support the claim,” does not entitle

15 W&A to summary judgment on this record because we cannot conclude that the information in

16 plaintiff’s file was adequate to make these kind of judgments. 

17 In addition, the affidavit submitted by UC&S partner Mitchell Slamowitz

18 describing the steps taken by UC&S before its July 18, 2000 letter was sent merely stated that he

19 reviewed the file sent by W&A through NAN software, which included “Mr. Miller’s full name,

20 social security number, current address, telephone number, the Lord & Taylor account number,

21 the amount of the debt, and a notation that Mr. Miller was an attorney. . . . After reviewing the

22 file, I made the decision to send a letter to Mr. Miller and I personally signed the letter, dated
4

 The affidavit of Ronald Canter describes the sending of the April 24, 2000 and May 29,

2000 letters, based on Canter’s review of W&A’s “file” and “a review of activity that had taken

place on Mr. Miller’s account since W&A mailed him an initial collection letter. This review

included reference to several unsuccessful attempts to contact Mr. Miller by telephone to discuss

the account.” Canter further stated that when Miller failed to respond to the April 24, 2000

follow-up letter, “I authorized the printing and mailing of an offer to Mr. Miller to settle for a

reduced amount in order to avoid litigation. . . . When Mr. Miller failed to respond to any

communications from our office, [W&A] forwarded his account for litigation to the law firm of

Upton, Cohen and Slamowitz on July 12, 2000.” There is no evidence in the record that W&A

requested or received any additional information from Lord & Taylor before forwarding the

account to UC&S for litigation. 

5

 With no apparent irony despite their successful efforts to resist discovery, after plaintiff

informed the district court that W&A took in over 55,000 new collection accounts monthly,

“going name, account, last payment date; name[,] account, last payment date, okay, beep, beep,

beep, letter, letter, letter,” defendants objected to the consideration of this information because it

was “not in the record; it’s not true.”

21

1 July 18, 2000.” This too is insufficient to support the conclusion as a matter of law that any

professional judgment was exercised before UC&S sent its collection letter.42 Cf. Boyd v. Wexler,

3 275 F.3d 642, 646 (7th Cir. 2001) (“Before a follow up letter can be responsibly approved by a

4 lawyer, he must inspect the file to determine that there has been no partial payment or other

5 response from the debtor . . . .”). Similarly, while Slamowitz stated that “[a]t the time of this

6 initial review of Mr. Miller’s file, I also determined that a summons and complaint should be

7 filed if Mr. Miller did not respond to the letter dated July 18, 2000,” the affidavit does not

8 demonstrate any basis for this determination.

9 Finally, we also note that plaintiff claims that W&A takes in over 55,000 new

collection accounts monthly via electronic transmission.510 If plaintiff’s account is typical, this

11 suggests that W&A could have mailed over 110,000 letters a month. While defendants argue

12 that this fact is not in the record and that plaintiff’s emphasis on electronic transmission is

13 “factually and legally irrelevant,” if discovery in this case were to reveal that W&A and UC&S
22

1 handled this high volume of accounts, received only the limited information described in the

2 attorney affidavits, reviewed the collection files with such speed that no independent judgment

3 could be found to have been exercised, and then issued form collection letters with the push of a

4 button, a reasonable jury could conclude that W&A and UC&S lacked sufficient professional

5 involvement with plaintiff’s file that the letters could be said to be from an attorney. See, e.g.,

6 Nielsen, 307 F.3d at 637 (“[T]he numbers (recall that [the client] referred [the attorney] an

7 average of some 2,000 accounts per month) and assembly-line fashion in which [the attorney’s]

8 letter was issued betray the purely nominal nature of his participation in the collection process.”);

9 Boyd, 275 F.3d at 648 (holding that the high volume of mail handled by a debt-collecting

10 attorney was relevant to his credibility where the attorney claimed in an affidavit to have

11 reviewed plaintiff’s file before sending letter, because the volume of mail suggested both that the

12 attorney might not have had time to review the file and that he might not remember accurately). 

13 If, on the other hand, it becomes clear after discovery that W&A and UC&S do

14 indeed review information reasonably calculated to permit them to make the kind of

15 determinations Abramson claims to have made before sending the collection letters, the letters

16 would be in compliance with the FDCPA. See, e.g., Nielsen, 307 F.3d at 638 (“[A]n attorney

17 must have some professional involvement with the debtor’s file if a delinquency letter sent under

18 his name is not to be considered false or misleading in violation of section 1692e(3) and (10).”); 

19 Boyd, 275 F.3d at 648 (requiring some showing of “professional judgment concerning the

20 existence of a valid debt” before an attorney may send a collection letter); Clomon, 988 F.2d at

21 1321 (“[T]he use of an attorney’s signature implies—at least in the absence of language to the

22 contrary—that the attorney signing the letter formed an opinion about how to manage the case of
23

1 the debtor to whom the letter was sent.”). 

2 In sum, by relying on the attorneys’ affidavits and not allowing plaintiff any

3 opportunity to investigate precisely what information the affiants reviewed, how much time was

4 spent reviewing plaintiff’s file, and whether any legal judgment was involved with the decision

5 to send the letters and ultimately to initiate litigation — facts not clearly addressed in defendants’

6 conclusory affidavits but highly relevant to the affiants’ credibility and to whether the letters

7 complied with the FDCPA — the grant of summary judgment on this claim was premature.

8 III. UC&S’s Attempt to Collect Attorneys’ Fees

9 Plaintiff also argues that because the FDCPA makes it illegal to attempt to collect

10 an amount not “expressly authorized by the agreement creating the debt or permitted by law,” 15

11 U.S.C. § 1692f(1), the filing of the state court complaint by UC&S seeking $323.63 in attorneys’

12 fees violates the FDCPA. While plaintiff does not dispute that the credit card agreement here

13 provided for payment of attorneys’ fees, he contends that Ohio law prohibits collection of

14 attorneys’ fees in any consumer contract of adhesion and that the contingent 20% fee sought by

15 UC&S was to be shared with NAN, in violation of New York’s professional ethics rules. Thus,

16 plaintiff’s argument goes, the fees UC&S sought to collect cannot be said to be authorized by the

17 agreement or by law.

18 As an initial matter, we conclude that plaintiff has waived the argument that the

19 collection of attorneys’ fees is barred by Ohio law. Miller did not allege in the complaint that

20 attempting to collect attorneys’ fees under a contract of adhesion violates Ohio law, nor did he

21 raise this issue in opposition to the motion to dismiss or at oral argument. Significantly, plaintiff

22 also never sought to amend the complaint to assert this claim. Accordingly, he cannot now rely
24

1 on it as a basis for his FDCPA claim. See Caiola v. Citibank, N.A., 295 F.3d 312, 327 (2d Cir.

2 2002) (“[W]e generally do not consider arguments not raised below..”). 

3 Defendants maintain that plaintiff lacks standing to pursue this claim because it is

4 undisputed that plaintiff never paid any attorneys’ fees to either UC&S or NAN, as the

5 underlying lawsuit initiated by UC&S was settled with different counsel. Accordingly,

6 defendants argue that plaintiff did not suffer any identifiable injury. The FDCPA provides for

7 liability for attempting to collect an unlawful debt, however, and permits the recovery of

8 statutory damages up to $1,000 in the absence of actual damages. Thus, courts have held that

9 actual damages are not required for standing under the FDCPA. See, e.g., Keele v. Wexler, 149

10 F.3d 589, 594 (7th Cir. 1998) (“[T]he plaintiff who admittedly owes a legitimate debt has

11 standing to sue if the Act is violated by an unprincipled debt collector.”); Baker v. G.C. Servs.

12 Corp., 677 F.2d 775, 777 (9th Cir. 1982) (same); cf. Gambardella v. G. Fox & Co., 716 F.2d

13 104, 108 n.4 (2d Cir. 1983) (noting that “[i]t is well settled . . . that proof of actual deception or

14 damages is unnecessary to a recovery of statutory damages” under the Truth in Lending Act). 

15 Accordingly, we join those courts and hold that the fact that plaintiff did not ever pay any

16 attorneys’ fees to NAN does not necessarily suggest that he was not injured for purposes of his

17 FDCPA claim, if he can show that UC&S attempted to collect money in violation of the FDCPA. 

18 We therefore turn to the dispositive question before us: whether the fees sought to

19 be collected were not permitted by the contract or by law. Miller argues that the $323.63 sought

20 by UC&S in the verified complaint was not an amount permitted by law because UC&S intended

21 to share some portion of the fee with NAN in violation of state ethics rules. We find no support

22 for plaintiff’s position that an attorney violates the FDCPA by attempting to collect a facially
6

 Plaintiff also asserts that UC&S consistently seeks a 20% fee without ascertaining

whether the fee is reasonable. The fee sought here, however, was only $323.63, and plaintiff

does not allege that this fee is unreasonably high. As the district court observed, “I can’t imagine

anything that a lawyer does not generating at least 322 [sic] dollars in fees. So I cannot say that

that amount was excessive or unreasonable given what went on here, the sending of a few letters

or, therefore, that Upton Cohen’s alleged sharing of part of that fee, some 40 dollars, with the

network that referred them to the client, was contrary to the express authorization of the

agreement to also be liable for attorney’s fees here.”

25

1 reasonable fee — consistent with the terms of the underlying agreement — with the intent later to

use the money in some otherwise prohibited manner.62 

3 Miller also argues even if a violation of state professional ethics rules does not

4 give rise to a private right of action, it is evidence that defendants violated the FDCPA, noting

5 that “many of the express prohibitions of the FDCPA involve conduct that would also be a

6 violation of a lawyer’s ethical standards.” Appellant’s Br. at 30. Even if this is true, however,

7 plaintiff’s cause of action under § 1692f(1) requires a showing that defendants attempted to

8 collect an amount not expressly permitted either by the agreement creating the debt or by law. In

9 other words, plaintiff states a claim only if the $323.63 sought by UC&S in the state court

10 complaint was not permitted by the Lord & Taylor agreement or by law. Thus, the cases cited by

11 plaintiff where courts have considered certain conduct that violates professional ethics rules as

12 also deceptive or misleading in violation of the FDCPA’s prohibition of the use of “false,

13 deceptive or misleading representation[s],” 15 U.S.C. § 1692e, or as violative of other FDCPA

14 provisions, are inapposite. See Appellant’s Br. at 31; Appellant’s Reply Br. at 12-13.

15 In summary, plaintiff challenges not the reasonableness of the fee itself but rather

16 what UC&S later intended to do with its fee. The district court correctly found that plaintiff

17 failed to state a claim in that the amount UC&S sought to collect was permitted by the agreement
7

 We therefore do not reach defendant NAN’s alternative arguments that it cannot be held

liable under the FDCPA because it is not a debt collector within the meaning of the FDCPA nor

do we reach the argument advanced by all defendants that the proposed fee sharing agreement

between NAN and the affiliate law firms comports with New York professional ethics rules. We

express no view on that issue.

26

and was not prohibited by law.

7

1

2 IV. The W&A Collection Letter

3 Finally, Miller argues that the district court erroneously granted defendants’

4 motion to dismiss his claim that the February 25, 2000 collection letter sent by W&A violates

5 § 1692g because it would confuse the least sophisticated customer as to his or her rights under

6 the FDCPA. On appeal, Miller raises three objections to the letter: (1) the failure of the checklist

7 on the front of the letter to include an option to request validation of the debt could confuse a

8 consumer, notwithstanding the notice on the reverse of the letter advising that requests for debt9 validation must be in writing; (2) the validation notice itself is deceptive because it suggests that

10 the listed information is an exclusive listing of a consumer’s rights under the FDCPA; and (3) the

11 listing of forty-four cities as “NAN affiliates” on the letterhead is misleading because it could

12 suggest to a consumer that W&A was admitted to practice law in all of those jurisdictions. 

13 Defendants again raise a preliminary issue of waiver. Plaintiff’s complaint alleges

14 that the letter was misleading because it identified only certain FDCPA rights (Complaint, at ¶

15 77), and instructed the consumer to call W&A to resolve the matter (Complaint, at ¶¶ 88-92). In

16 opposition to the motion to dismiss, plaintiff argued only that the letter violated the FDCPA

17 because “a reasonable reading of the notice on [the] initial debt collection letter is that consumers

18 have only the rights specified in the letter and not others.” Pl. Opp. to Mot. to Dismiss, at 19-21.

19 Finally, when asked by the district court at oral argument to articulate how the letter violated the
27

1 FDCPA, plaintiff explained:

2 The validation notice says, after reading the notice, call if appropriate. A call is

3 not sufficient to preserve your rights under the FDCPA . . . . As a matter of fact,

4 the only thing that the notice encourages [consumers] to do in writing is to check

5 those various boxes . . . . None of these boxes assume that I contest this debt.

6

7 Accordingly, because plaintiff was given numerous opportunities to clarify the claims at issue,

8 and failed to raise the claim that listing the forty-four NAN affiliated firms was deceptive or

9 misleading at any time before this appeal, we find this argument to be waived. See Caiola, 295

10 F.3d at 327. 

11 As previously noted, 15 U.S.C. § 1692e bars the use of “any false, deceptive, or

12 misleading representation or means in connection with the collection of any debt.” In addition,

13 15 U.S.C. § 1692g requires debt collectors to include a “validation notice” either in the initial

14 communication with a consumer in connection with the collection of a debt or within five days of

15 that initial communication, which must inform the consumer that he or she has certain rights,

16 including the rights to make a written request for verification of the debt and to dispute the

17 validity of debt. See 15 U.S.C. § 1692g(a).

18 “When determining whether § 1692g has been violated, an objective standard,

19 measured by how the ‘least sophisticated consumer’ would interpret the notice received from the

20 debt collector, is applied.” Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996) (citing

21 Clomon, 988 F.2d at 1318 (holding that the least sophisticated consumer standard applies to

22 whether § 1692e has been violated)). “When a notice contains language that ‘overshadows or

23 contradicts’ other language informing a consumer of her rights, it violates the Act.” Id. (citing

24 Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991)). “A debt collection notice is
28

1 overshadowing or contradictory if it fails to convey the validation information clearly and

2 effectively and thereby makes the least sophisticated consumer uncertain as to her rights.” 

3 Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998).

4 In Russell, as in the instant case, the back of the notice included a validation

5 notice that complied with the FDCPA. The front of the Russell letter, however, instructed the

6 debtor, in all capital letters, that “If you do not dispute this claim (see reverse side) and wish to

7 pay it within the next 10 days we will not post this collection to your file. . . . It is our practice to

8 post unpaid collections in the amount of $25 or more to individual credit records.” Russell, 74

9 F.3d at 34. We found that this notice was contradictory because the least sophisticated consumer

10 “could readily believe — despite the inclusion of the validation notice — that were she to take

11 any course other than payment to Equifax within 10 days, it would permanently affect her credit

12 record.” Id. Similarly, in Savino, we held that a debt collection letter stating that “[t]he

13 [creditor] insists on immediate payment or a valid reason for your failure to make payment” was

14 contradictory, despite the inclusion of the validation notice on the back of the letter, because the

15 least sophisticated consumer could be confused by the “decision to ask for immediate payment

16 without also explaining that its demand did not override the consumer’s rights under [§ 1692g] to

17 seek validation of the debt.” 164 F.3d at 85, 86. 

18 The W&A letter clearly advises the reader, in the main body of the letter, “[a]fter

19 reading the important notice on the reverse” to “call our office to resolve this matter” “if

20 appropriate.” (emphasis added). The notice on the back, in turn, correctly instructs consumers

21 that they should notify W&A in writing to request verification of the debt or to dispute the debt,

22 while the front of the letter instructs the recipient that “[w]hen paying the balance in full or if you
29

1 are unable to call our office, check one of the options below and return the bottom portion of this

2 letter . . . .” While the options detailed on the bottom of the letter do not include requesting

3 validation of the debt, the bottom of the letter states in large-print, capital letters, “BEFORE

4 RESPONDING TO THIS LETTER SEE REVERSE SIDE FOR IMPORTANT NOTICE.” 

5 Thus, the reader is directed to the correct validation notice in several places, and is thereby

6 advised of his or her FDCPA rights. See McStay v. I.C. Sys., Inc., 308 F.3d 188, 191 (2d Cir.

7 2002) (“[W]hen a prominent instruction in the body of the letter warns that there is important

8 information on the reverse side, a reasonable reader, even if unsophisticated, would turn the

9 paper over and read the back.”).

10 With these repeated instructions to review the validation notice on the back of the

11 letter before responding to the letter, even the least sophisticated consumer would realize that it is

12 “appropriate” to contact W&A’s office by phone only if the consumer did not wish to exercise

13 his or her FDCPA rights as outlined on the reverse of the letter. Where a validation notice

14 plainly specifies that FDCPA contact must be in writing, and nothing on the front of the letter

15 suggests in any way that an instruction to call was intended to override the requirements outlined

16 in the validation notice, we do not believe that a reasonable consumer — having twice been

17 instructed to review the validation notice before taking any further action — who wished to

18 exercise his or her FDCPA validation rights could be misled into thinking that the clear

19 obligation to request validation in writing was somehow modified by either the invitation to call

20 if appropriate or the four options on the bottom of the letter. As this Court noted in Clomon,

21 “courts have consistently applied the least-sophisticated-consumer standard in a manner that

22 protects debt collectors against liability for unreasonable misinterpretations of collection
30

1 notices.” 988 F.2d at 1319. We therefore agree with the district court’s conclusion that the letter

2 was not misleading or deceptive on these grounds.

3 Finally, plaintiff argues that the letter is deceptive because the validation notice,

4 which states that the recipient “is entitled to certain information that sets forth your rights and

5 obligations under the law,” and then describes what “[t]he law provides,” incorrectly suggests to

6 the least sophisticated consumer that the listed information is an exclusive list of a consumer’s

7 FDCPA rights. Plaintiff does not, however, dispute that the notice includes everything that the

8 law requires be included in the validation notice. Because a consumer has no right to written

9 notice about his or her other FDCPA rights, we do not find this language misleading or

10 deceptive. See Savino, 164 F.3d at 86 (holding that the language at issue in that case was

11 insufficient under the FDCPA, and proposing as an acceptable alternative the following notice:

12 “Although we have requested that you make immediate payment or provide a valid reason for

13 nonpayment, you still have the right to make a written request . . . for more information about the

14 debt. Your rights are described on the reverse side of this notice.”) (emphasis added). Further,

15 by advising that the FDCPA entitles a debtor to “certain information,” the letter itself addresses

16 plaintiff’s concern, and cannot reasonably be read as suggesting that the rights described in the

17 notice are an exclusive listing. 

18 Accordingly, the initial collection letter sent by W&A was not false, deceptive or

19 misleading as a matter of law, and the motions to dismiss this claim were properly granted.

20
31

1 CONCLUSION

2 For the foregoing reasons, we vacate the grant of summary judgment on plaintiff’s

3 claim that W&A and UC&S violated the FDCPA by sending debt collection letters that

4 purported to be, but were not in any meaningful way, “from” attorneys and remand for further

5 proceedings, including discovery, on this claim. We affirm the grant of the motions to dismiss

6 the two remaining claims.