UNIT ED S TAT ES COU RT OF A PP EALS 1 FOR THE SE CON D CIR CUIT 2 3

_____________________________ 4 5 August Term, 2002 6 7 (Argued: November 12, 2002 Decided: February 25, 2003) 8 9 Docket No. 02-7017 10 11

_____________________________ 12 13 ARTHUR MIL

LER, on behalf of himself and all others similarly situated, 14 15 Plaintiff- Appellant , 16 17 v. 18 19 WOLPOFF & AB RAMSON, L.L.P., UPTON, COHEN & SLAMOWI TZ, and NATI ONAL 20 AT TO RN EY NE TW OR K, INC ., su cc es so r t o W al la ce & d e M ayo , a pa rt ne rs hi p a nd wh ol ly21 owned subsidiary of TSYS Total De bt Management, I

nc., individually and as joint venturers a nd 22 co-conspirators with each other, 23 24 Defenda nts-Appe llees. 25 26 27

_____________________________ 28 29 30 Before: KEARSE, McLAUGHL IN, and SOTOMAYOR, Circuit Judges

. 31 32

_____________________________ 33 34 35 Appeal from a judgment of the United States District Court for the Easte rn 36 District o f New York (Reen a Raggi, then-D istrict Judg e) gra nting de fendant s’ motions t o dismiss 37 and for s

ummary judgmen t on the g rounds tha

t plaintif f failed to state a claim und

er the F air 38 Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Because we conclude that 39 the grant of summary judgment without allowing plaintiff an opportunity to conduct discovery 402

was premature, we vacate that por tion of the decision granting summary judgment on plaintiff’s 1 claim that defendants violated the FDCPA by sending debt collection letters purporting to be 2 from

attor neys without a

ny mean ingf ul att orne y i nvolv emen

t in th e sending

of tho se letter s. We 3 affirm t

he distric t court’s grant o f the motions to dismiss the rema inder of plaintiff ’s claims , 4 holding that plaintiff’s claim regarding the alleged splitting of attorney fees with a non-attorney 5 referral network fails to state a cla im under the FDCPA and that the challenged collec tion letter 6 was neither misleading nor deceptive within the meaning of the FDCPA. 7 Vacated in part, affirmed in part, and r emanded. 8

_____________________________ 9 10 CHR ISTO PH ER V. LA NGO NE, Ch ica go, IL (Br ian L. 11 Bromberg, New York, NY , Lance Raphae l, Chicago, IL , on 12 the brief), for plaintif f-appella nt. 13 14 THOM AS A. L EGHO RN, Wil son, E lser , Mosk owitz , 15 Edelman & Dicker, L LP, New York, NY (B rett A. Scher, 16 of counsel), for defendants-appellees Wolpoff & Abramson 17 and Upton, Cohen & Slamowitz. 18 19 KEVI N G. McMO RROW, Ahmuty , Demers & McMan

us, 20 Albertson, NY (Neil H. Angel, on the brief) , for defen dant21 appellee National Attorney Network, Inc. 22 23

_____________________________ 24 25 SOTOMAYOR, Circuit Judge : 26 27 Plaintiff -appell ant Arthu

r Miller a ppeals the gran

t of defe ndants’ motions to 28 dismiss and for partial summary judg ment by the United States District Court for the Ea stern 29 District of New York (Reena Ragg i, then-District Judge). Plaintiff claims tha

t defendants30 appelle es, law f

irms Wolpof

f & Abra mson, L .L.P. (“W&A” ), Upton, Cohen & Sl amowitz 313

(“UC&S”), and the National Attorney Network (“NAN”), a non-attorne y refe rral network that 1 coordinates the practice of debt collection, violated the F air Debt Collection Practices Act 2 (“FDCPA”), 15 U.S.C. § 1692 et seq. , by sending de bt collection letters on attorney letterhead 3 without any meaning ful attorney involvement in the de cision to send those letters, by attempting 4 to collect attorneys’ fees that were to be shared with NAN, a nd by sending a

debt collection letter 5 that was misleading or deceptive. 6 For the reasons that follow, we hold that the gra nt of summary judgme

nt on 7 plaintiff

’s claim t hat W&A a

nd UC&S fa

iled to conduct a me aningf ul revie w of plain

tiff’s f ile 8 before sending the debt collection letters on attorne y letterhea

d was premature. We affirm the 9 dismissal of plaintiff’s claim that UC&S’s efforts to collect attorney s’ fees violates the FDCPA’s 10 prohibition on attempting to collect an amount not expressly authorized by the agreement 11 creating the debt or by law. We hold that the underlying credit card agree

ment permitted the 12 collecti on of attorneys’ fees and that t he fact that UC& S later ma

y ha ve intend ed to shar e those 13 fees with a non-lawy er does not render the attempt to collect such fee s illegal, even if that act of 14 sharing

might vio late New

York pro fessiona

l ethics r ules. Finally , we hold t

hat plain tiff’s c laim 15 that language in W&A’s original collection letter overshadows or contradicts the validation 16 notice was proper ly d ismissed be cause the notice clearly advises t he consu mer of he r FDCPA 17 rights and is neither overshadowed nor contra dicted by the lang

uage on the front of the letter. 18 Accordingly , we vacate in part, affirm in part, and r emand. 19
201 The facts described below are ta ken from plaintiff’s complaint and are supplemented by the infor mation all eged in

affida vits submitte d by

the defe ndant att orney s in suppor

t of their motions for

summary judgmen t. The Cour

t is awar e that pla intiff ha s not y

et had an opportuni

ty to conduct discovery , and recognizes that discovery may reve al that the facts as alleged by defendants are untrue. This summary, therefore, is not intended to preclude any such showing by plaintiff. 4 BACKGROUND 1 2 I. Factua l Background 1 3 4 Plaintiff Arthur Miller entered into a credit card ag reement with Lord & T aylor. 5 After Miller refused to pay $1618.14 owed on the card, he received a series of letters from 6 defenda

nts W&A an

d UC&S in c onnection with thei r attempt s to collec

t on the de

bt. 7 W&A regularly represents Lord &

Taylor on collec

tion matters, and Lord & 8 Tay

lor sent the Miller f

ile to W&A

for colle ction ass istance . On February 23, 2000, R

onald 9 Abramson, a partner at W&A, reviewe d the “file,” which contained the following informa tion: 10 Miller’s full name, social security number, current address, home and work phone numbe rs, the 11 Lord

& Tay lor acc ount numbe

r, the da te the cr edit acc ount was o

pened, the date of

the last 12 charg e to the a

ccount, t he date t he acco unt was charge d off, the

accoun t balanc e, and “ a sy

nopsis 13 of [Lord and Tay lor’s] recent customer service notes reg arding their efforts to resolve Mr. 14 Miller’s account prior to forwarding the matter to [W&A] for collection.” After r eviewing this 15 file, Abramson claims he “activated a print command on Wolpoff & A bramson’s computer 16 system and W&A’s initial collection letter . . . was printed and mailed to the Plaintiff on 17 February

25, 2000.” 18 The February 25, 2000 letter identified W&A as “Attorneys in the Practice of 19 Debt Collection (A National Attorney Network Firm).” The letter demanded pa yment of 205

“$1618.14 (including applicable contractual c harges),” noted that it was sent with reg ard to May 1 Department Stores/Lord & T aylor, and state d: 2 Please be advised t hat we re present the above -named c

reditor w ho claims 3 you have a delinquent balance as stated above. After y ou have read the important 4 notice on the reve rse side of this let

ter, if a ppropria te pleas e call ou

r office to 5 resolve this matter. 6 7 When paying the balance in full or if y

ou are unable to call our office, 8 check one of the options below and return the bottom portion of this letter in the 9 self-addressed envelope provided for y our convenience. 10 11 Very truly you rs, 12 13 WOLPOF F & AB RAMSON, L .L.P. 14 15 At the bottom of the letter was a “detach and return” section listing four options 16 with boxes for the consumer to check: 17 [ ] I mailed a check on _________ 18 19 [ ] Here is payment i n full made p ayable to the cre dito r. Tha nks fo r wait ing. 20 (If pay ing by Western U

nion Quick Collect, for y our conv enience

please 21 see payme nt instructions on reverse side.) 22 23 [ ] Enclosed is pay ment in ful l made pa

ya ble to the creditor, but it’s

post24 dated a f ew day s. 25 (Not applicable for residents of Massachusetts.) 26 27 [ ] I cannot call y ou during the day

. 28 Please ha ve someone call me . My telephone number

during t he day is 29

_________ 30 My telephone number in the evening is ___________ 31 32 ***This is an attempt by a debt collector to collect a debt and any information obtained 33 will be used for that purpose.*** 34 35 * * * BEFORE RESPONDING TO THIS LET TER * * * 36 SEE REVERSE SIDE FOR I MPORTANT N OTIC E 37 38 On the back of the letter, in larger print than the text on the front of the letter, the 396

following notice was printed: 1
* * * IMPORTANT NOTICE * * * 2 3 You are entitled to certain information that sets forth y our rights and our 4 obligations under the law. The law provides that: (a) Within five (5) da ys after 5 the initial communication with a consumer in connection with the collection of 6 any debt, we shall, unless the following information is contained in the initial 7 communication or the consumer has paid the debt, send the consumer a w ritten 8 notice containing (1) the amount of the debt, (2) the na me of the creditor to whom 9 the debt i s owed, ( 3) unless a consume

r, within t hirty (30) day s after r eceipt o f this 10 notice, disputes the validity of the debt, or a ny portion thereof, the

debt will be 11 assumed t o be valid by t his offic e, (4) if

the consu

mer notif ies this of fice in 12 writing within the

thirty day period that the de

bt, or any portion thereof, is 13 disputed, this office will obtain verification and a copy of such verification will be 14 mailed to t he consu mer by this offic e, and (5 ) upon the consumer ’s writte

n request 15 within the thirty day period, t his offic e will provide the c onsumer w ith the na me 16 and address of the original creditor if diff erent from the current creditor. (b) If the 17 consumer notifies t his offic e in writin

g within t he thirty day period that the de

bt, 18 or any portion there of, is disputed, or that the consumer requests the name and 19 address of the original creditor, we sha ll cease collection of the debt, or any 20 disputed portion thereof, until this office obtains verification of the debt or the 21 name and address of the or iginal c reditor, and a co

py o f such ve

rificat ion, or na me 22 and address of the original creditor, is mailed to the c onsumer by this office. ( c) 23 The failure of a consumer to dispute the validity of a debt under the section may 24 not be construed by a ny court as a

n admission of liability by the consumer. 25 26 This is an attempt by a debt collec tor to collect a debt and any information 27 obtained will be used for that purpose. 28 29 On April 26, 2000, Miller was sent a second letter, also on W&A letterhea d, 30 informing

him that: 31 All attempts to contact you conce rning the above account have pr oven to be 32 unsuccessful. It is important that y ou call us at 301-961-7620, or toll free at 1- 33 800-678- 7720 to disc uss this mat

ter. We a re plea sed to inf

orm y ou that if y

ou call 34 our office wit hin ten (10 ) days from the date of t his letter , YOU MAY QUALIFY 35 FOR A L ARGE DI SCOUNT ON

THE ABO VE MATTER. This is a l imited time 36 offer only; y ou must contact our office within this ten (10) day period. 37 38 The lette

r include d a “pay

ment coup on” porti on to deta ch and re turn with p ay

ment. 397 On May 31, 2000, W&A se nt a third letter advising Miller that “[o]ur client has 1 authorized this office to make an extraordinary offer to settle y

our past-due account with them. 2 We have been permitted to accept $1294.51, which repr esents 80% of the outstanding balance as 3 settlement in full of your obliga tion.” The letter informed Miller that he had until June 28, 2000 4 to make a lump sum payment in full, and advised him that if he could not make the entire 5 payment by

that date, “please call our office a nd we will be happy to make reasonable pay

ment 6 arrangements with y ou on the balance.” The letter also instructed that any check or money

order 7 should be made paya ble to the client but sent to W&A’s office with the enclosed pay ment 8
coupon. 9 Plaintiff did not respond to any of these le tters, and on July 12, 2000, plaintiff’s 10 file was

refer red thro ugh NAN to UC&S wit

h instructions to init

iate litig ation promptly . On July 11 18, 2000, UC&S sent plaintiff a letter demanding pay ment of $1676.69, and stating in pertinent 12 part: “Please be advised that we are the a ttorneys for the a

bove creditor. The above refer enced 13 account has been forwarded to us for collection. Please contact this office to arrang e for 14 payment.” This letter, unlike the first three W&A letters, was hand-sig ned by Mitchell G. 15 Slamowitz, Esq. On August 25, 2000, Attorney Slamowitz filed a verified c omplaint in Queens 16 County court seeking recovery of $1618.14 and attorney s’ fees of $323.63 for Miller’s alleged 17 breach of the credit card a greement with Lor

d & Tay lor. Slamowitz claims that he determined 18 that the underlying credit card agree

ment authorized payment of a ttorneys’ fe es before he filed 19 the compl aint. 20 According to plaintiff, under the ag reement between NAN and UC&S, NAN 21 would hav e been e ntitled to 3 % of any

amount ulti

mately collecte d by

Lord & Tay lor as a r esult 222 Plaintiff eventually settled the under lying suit and it is undisputed that he paid no attorne ys’ fees to U C&S beca

use L ord & Ta

ylor obtaine d new cou

nsel afte r plaintif f initiate d this lawsuit. 8 of the litigation. 2 1
II. Proceedings Below 2 On February 23, 2001, Miller filed suit against W&A, UC&S and NAN, alleging 3 that defendants, individually and a s joint-venturers and co-conspirators, violated the FDCPA (1) 4 by sending de

bt collection letters on attorney letterhead without meaningful review by any 5 attorney of the

circumstances surrounding plaintiff’s alleg ed debt, (2) by attempting to collect 6 attorneys’ f

ees that were to be shared with NAN as a referral fee in violation of state profe ssional 7 ethics rules, and (3) by mailing a letter that would confuse the “least sophisticated consumer ” as 8 to his or her rights. Plaintiff brought these claims as a putative cla ss action. 9 Three months later, before any discover y w as condu

cted, de fendant s moved to 10 dismiss or a

lternati vely for summa

ry judgmen t. The moti ons relie d in part on affida vits 11 submitted by Ronald Abramson, Jay Scheiner, Laurenc e C. Abramson, Ronald S. Canter, and 12 Mitchell Slamowitz, attorneys at W&A and UC&S involved with sending the debt collection 13 letters and initiating the state court proceeding against Miller. Plaintiff filed a responsive letter 14 motion on June

20, 2001, s eeking

denial of the motions

without pr

ejudice under F ed. R. Civ. P

. 15 56(f), or alternatively , either an expedited discovery schedule or modification of the briefing 16 schedule

to permit h

im time to conduct disc overy, includin g depos ing the a

ttorney affian ts, 17 before responding to the motions. The letter explained that notwithstanding defe ndants’ reliance 18 on affidavits supporting the motions for summary judgment, “[d]efendants are resisting our 19 efforts to obtain depositions from those affiants that they are using in their motion papers.” On 209

July 3, 2001, the district court denied plaintiff’s motion and advised that “[t]o the extent the 1 plaintiff wishes to seek relief under Rule 56(f), he should do so in his formal opposition to the 2 pending motions, in a manner compliant with the Rule’s requirements.” The distr ict cour t did 3 not address the alternate relief sought by plaintiff. Consistent with this order, plaintiff submitted 4 a Rule 56(f) affidavit from his counsel in opposition to summary judgment detailing the areas 5 where d

iscover y w as soug

ht and expla

ining tha t defend ants had r esisted d iscover y a nd, as a 6 result, that no discovery ha d been taken to date. 7 Following oral argument on Novembe r 9, 2001, the district court granted from the 8 bench defendants’ motions to dismiss or alternatively for summary judg

ment. First, the district 9 court held as a matter of law that the attorney defendants had conducted a sufficiently meaningful 10 review before sending the c ollection letters. Specific ally , the cour t found, ba sed on the

affida vits 11 submitted by the attorney defendants in support of the motions, that “these individuals did more 12 than just peruse a debt notice. Each of them has stated under oath that they revie

wed the file and 13 confirmed that the debt was then outstanding – this would be the most important thing to ensure 14 that there was not stale information – to ensure that the correc t person’s account was at issue.” 15 Based on this representation, the district court held that “the lawy er has done what would be 16 expected of a licensed professional under the circ umstances . . . .” Deny

ing plai ntiff’s r equest 17 under Rule 56(f) for additional discovery, the court held: 18
No th in g I’ ve he ar d t od ay s ug ge st s t ha t t he re wo ul d b e a ny b en ef it in ha vi ng th e a tt or ne ys 19 deposed . The par ties’ disp ute is ove r whethe r they needed to do more

before they could 20 use their

letterhe ad under

the law, a

nd I’ m satisfie d from the

cases c ited by

the defe ndants 21 in their br iefs that these la wy ers did what was expe cted of t hem under

the law f or them to 22 use their letterhead to send out the notices.” 23 24 Next, assuming for purposes of the motions that NAN would have receive d its fee 2510

from UC&S’s fee recovery , rather than from Lor

d & Tay lor’s total recovery , the district court 1 found that there was a “serious question” whether plaintiff had standing because “we know that 2 the consumer did not pay the debt under these circumstances.” The court went on to consider 3 whether the practices allege d here could be found to have violated the FDCPA, in that “the 4 collection of this amount [the $323.63 sought by UC&S in the state c ourt suit] was either not 5 expressly authorized by the agreement or not permitted by law.” Noting that the agree ment 6 betwe en Mil ler and Lord & Taylor expr essly pro vides that i f a debt had to be col lecte d thro ugh 7 litigation, the consumer might be liable for the debt and re asonable attorney s’ fees, the court 8 found that UC&S’s 20% contingency fee amounted to only $322.80, a reasonable fee as a matter 9 of law, and the court concluded that sharing $40 of this fee with NAN was not contrary to the 10 agreement. The district court also rejected plaintiff’s arg ument that the payment of f ees to NAN 11 was an improper r eferr al fee, stating

that “[i]f there is a

ny problem in t

his refe rral ar gument, it is 12 properly a

ddressed not by a jur

y awar ding statutory fe es or attorney ’s fees in a federal action for 13 fair de

bt collection practice, but by t he discip linary

committee

of the Ne w York Sta

te Supreme 14 Court of Appeals.” 15 Finally, the district court r ejected plaintiff’s argument that the first dunning letter 16 sent by W&A was imper missibly confusing bec ause the statement that the debtor could call the 17 sender with questions “overshadowed” the notice on the ba ck of the letter advising the debtor 18 that any

dispute to

the debt m

ust be in wr

iting. The court held: 19 It seems to me bey ond dispute resolvable as a matter of law that the actual 20 validation notice i s complete in its advic e to a con sumer, e ven the le ast 21 sophistica ted consu mer, tha t to dispute

the debt, actions have to be taken in 22 writing and they will in turn trigger other actions by the debt collector . . . . The 23 suggestion made to this court is that because the attorne y also suggested in the 2411 cover le tter that the rec ipient of t

he letter could ca ll the law firm, in ot

her wor ds, 1 actually deal with a human be ing, tha

t somehow t

his violate d feder

al law. T his is 2 a tortured reading of the letter that c ould not be found by any reasonable fact 3 finder. The letter’s referenc e plainly makes cle ar to the recipient that it is the 4 attached validation notice that is the important document and that the call can be 5 made, if necessary . One would understand this to mean if there are furthe r 6 questions, if you need any explanations, but not that the notice about the writing 7 can be ignored. 8 9 Miller timely appealed both the July 3, 2001 Order deny

ing his request for 10 discovery a

nd the November 9, 2001 Order gra nting the motions to dismiss or alternatively for 11 summary judgme nt. 12
DISCUSSION 13
I. Standard of Review 14 Our standard of review for both motions to dismiss and motions for summary 15 judgmen

t is de novo

. Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) (motion 16 to dismiss) ; Mario v. P& C Food Markets, Inc. , 313 F.3d 758, 763 (2d Cir. 2002) (summary 17 judgmen

t). On a motion to dismi ss or for judgmen t on the ple adings we “must a ccept a ll 18 allegations in the complaint as true and draw all infer ences in the non-moving party ’s favor.” 19 Patel v. C

ontempor ary Classic

s of Beve rly Hills , 259 F.3d

123, 126 (2d Cir. 200 1). A ca se 20 should not be dismissed unless the court is satisfied that the complaint cannot state any set of 21 facts that would entitle the plaintiff to relief. Id. On a motion for summary judg ment, all factual 22 inferences must be drawn in favor of the non-moving party. Lane Capital Mgmt., Inc. v. Lane 23 Capital Mgmt., Inc. , 192 F.3d 337, 343 (2d Cir. 199 9). Summar y ju dgment i s appropr

iate only if 24 the moving party shows that there are no genuine issues of mate rial fact and that the moving 25 party is entitled to judgment a s a matter of law. Id. Finally, we r eview the denial of leave for 2612

discovery unde

r Fed. R. Civ. P. 56(f) for abuse of discretion. Belfiore v. N.Y. Times Co. , 826 1 F.2d 177, 183 (2d Cir. 1987). 2
II. The False Representation that a Debt Collection Letter is “From an 3 Attorney” 4 5 The FDCPA creates a ge neral prohibition against the use of “false, dec eptive, or 6 misleadin

g repr esentat ion or mea

ns in conne ction with

the colle ction of a

ny d ebt.” 15 U .S.C. 7 § 1692e. Se ction 1692 e contai ns a non-e

xhaustive li st of pra

ctices w ithin the pu

rview of this 8 prohibition, including “[t]he false representation or implication that any individual is an attorney 9 or that any communica tion is from an attorney.” Id. § 1692e( 3). Althou gh ther e is no disp

ute 10 th at W& A a nd UC &S ar e l aw fi rm s, or th at th e l et te rs se nt by t ho se fi rm s w er e “ fr om ” a tt or ne ys 11 in the literal sense of that word, some degree of attorney involveme

nt is required before a letter 12 will be considered “from an attorney ” within the meaning of the FDCPA. See, e.g. , Clomon v. 13 Jackson , 988 F.2d 1314, 1321 (2d Cir. 1993) (“[T]he use of an attorney ’s signature on a 14 collection letter implies that the letter is ‘from’ the attorney who signed it; it implies, in other 15 words, that the attorney directly controlled or

supervised the process through which the letter w as 16 sent . . . . [T]he use of an attorney’ s signature implies — at least in the absence of lang uage to the 17

contrar

y — t hat the a ttorney signing the lette r formed an opinion

about how

to manag e the ca se 18 of the debtor to whom the letter was sent.”). 19 Here, plaintiff claims that the letters sent by W&A and UC&S were form letters 20 generated by

a computerized debt collection sy stem without any meaning ful attorney 21 involvement in the process. Plaintiff also argues that the district court abused its discretion by 22 refusing to allow him to conduct any discovery to ena

ble him to respond to the motions for 2313

summary judgmen t while simu

ltaneous ly r

ely ing on de fendant s’ affid

avits to conclude that a 1 meaningful review of the file was c onducted by W&A a nd UC&S. For the reasons that follow, 2 we conclude that the grant of summary judgment on this record was premature. 3 Defendants moved for summary judgment on May 25, 2001. Plaintiff’ s counsel 4 informed the district court by le tter dated June 20, 2001, that he had attempted to depose the 5 witnesses on whose affidavits defendants’ motions were base d and that defendants were 6 “resisting our efforts to obtain [those] depositions.” In response, defe ndants’ counsel informed 7 the district court only that it had provided similar af fidavits to counsel before the lawsuit was 8 filed and that plaintiff’s counsel was aware that de fendants intended to move for early dismissal 9 of the claims. Defendants do not dispute that plaintiff had no opportunity to depose the lawye

rs 10 whose affidavits provided the basis for the district court’s decision. I n response to plaintiff’s 11 June 20, 2001 request for additional time to conduct discovery , the district court “denie[d] 12 plaintiff’s requests and order[ed] the parties to adhere to the pre viously approved brief

ing 13 schedule ,” noting that if pla

intiff wished to file

a Rule 56( f) affi davit, he could do so

in his 14 formal opposition to summary judgment. 15 Heeding the district court’s advice, plaintiff’s c ounsel filed an affidavit detailing 16 the discovery tha t was sought and the unsuccessful attempts that had been made to obtain that 17 information. In particular, the Rule 56(f ) affidavit explained that plaintiff sought four categ ories 18 of

di sc ov er y: 19 A) Written and oral discovery to determine and confirm the nature and extent of 20 the relationship between Defendants . . . . This information is necessar y and 21 relevant to the issue of joint venture. 22 23 B) Written and oral discovery to determine the nature of the fee-splitting 2414 arrangement between D efendants and NAN . . . . 1 2 C) Written and oral discovery to determine the extent of review made by 3 Defendants of Plaintiff’s file prior to sending collection letters and initiating 4 litigati on, includ ing any written ma

terials r elated to review p olicies and 5 depositions of Mr. Slamowitz, Mr. Roland M. Abramson, and Mr. Scheiner . This 6 information is necessary and relevant to the issue of whether Defe ndants’ review 7 of Plaintif f’s file was mean

ingful. 8 9 D) Written and oral discover y to determine the aut

hor and/or source

of the debt10 collecti on [letters] sent to consumers by N AN membe

r law fir ms . . . . This 11 informat ion is nec essary

and rele vant to the

issue of w

hether D efenda

nts 12 misrepresent who is sending the debt-collection letters (a n attorney or a

non13 attorney sending letters on attorney le

tterhead). 14 15 (Emphasis added). The affidavit further explained that plaintiff had a ttempted to obtain the 16 information through public information sources, but that the specific information soug ht 17 appeared to be within defendants’ sole possession and knowledge. Plaintiff’s counsel also stated 18 that plain

tiff had b een “unable to obtain the sp ecific i nformati on listed a

bove bec ause De fendant s 19 have refused to cooperate.” 20 Defendants argue that the district cour t properly denie d the request for discovery

. 21 First, they conte

nd that because the initial letter did not comply with Rule 56(f), the district court 22 properly de

nied it. While the letter did not comply with the Rule, it did promptly request an 23 extension o f the brie fing schedule to permit time

to conduct discove

ry , and, contrary

to 24 defendants’ assertion, noted with specificity that plaintiff sought, inter alia , to depose the three 25 affiants. We have previously observed that “when alerted to a forthcoming motion for summary 26 judgment, a party wanting more time for discovery should seek, through negotiation with the 27 other party a

nd, if necessary , through application to the district court, an appropriate discover y 28 schedule.” BurlingtonCoat Facto ry Wa rehouse C orp. v. Es prit de Corp , 769 F.2d 919, 927-28 2915

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

nt motion was filed, it appears from the record that he did so within a month of 2 receiving defendants’ motions, which wer e filed only three

months after the complaint was filed. 3 Thus, we d

o not faul t plaintif f for re questing

expedited

discover y or a modifie d briefin

g sche dule 4 when ale

rted to the

basis for defenda nts’ motion s for summa

ry judgmen t. 5 Defendants also argue that plaintiff ha s waived appeal of the discovery issue by 6 failing

to “chal lenge[] a

ny a ction tak en by the lower court pursuant to hi s Rule 56(f ) affida vit in 7 his notice of appeal . . . .” W&A/UC&S Br. at 29. Plaintiff appealed both the July 3, 2001 Order 8 denying

the letter request for time to conduct discovery and the summary judg

ment ruling, which 9 granted defendants’ motions to dismiss or for summary judgment over plaintiff’s objection that 10 he needed additional time to conduct discovery to respond to the motions. The test for 11 determin

ing the s ufficie ncy of a notic e of appe al is “whe ther it is o

bjective ly c lear tha

t a party 12 intended

to appea l.” Fed . R. App. P. 3 (c) adv isory committee

note (199 3 Amendme

nts). Thus , 13 as it is clear from the face of the notice of appeal that plaintiff challenged both the denial of 14 additional time to conduct discovery a nd the grant of defendants’ motions to dismiss or 15 alternatively f

or summary judg

ment, he cannot be said to have waived this issue on appeal. 16 Finally , defend ants cont end that t he affi davit foc

used primarily

on the re lationship 17 between NAN and the two law firms, and that “[t]he only portion of counsel’s affidavit relating 18 to the meaningful involvement issue asked for discovery as to ‘the extent of review made by (the 19 attorneys) of

Plaintiff’s file prior to sending collection letters and initiating litigation.’” 20 W&A/UC&S Br. at 30. Defend ants maint

ain that the affid

avit was i nsuffic ient bec ause it “ did 21 not explain

how the f

acts soug ht to be dis covere d would cr eate a genuine is sue of ma terial f act, 2216

particularly w

here attorney

affidavits explaining the nature of both firms’ review of Miller’ s 1 account were already in the record.” Id. We disagree. 2 “[A] party resisting summary judgmen t on the g round tha t it needs d

iscover y in 3 order to

defeat the motion m

ust submit a

n affida vit showing

‘(1) wha t facts a re soug ht [to resis t 4 the motion] a

nd how the

y a re to be o btained, (2) how th

ose facts are re asonably

expected to 5 create a genuine issue of ma terial fact, (3) what effort af fiant has made to obtain them, and (4) 6 why the aff

iant was unsuccessful in those efforts.’” Gurary v . Wine house , 190 F.3d 37, 43 (2d 7 Cir. 1999) (quot ing Meloff v. N.Y. Life Ins. Co. , 51 F.3d 3 72, 375 (2 d Cir. 1995 )) (alte ration in 8 original). Here, the affidavit soug ht discovery in four discr ete categories, the last two of which 9 were dir

ectly related to the “me aningf

ul involve

ment” cla im at issue

here. T he affi davit 10 explained that plaintiff required information about the extent of defendants’ review of the file. 11 As this was the critical issue in plaintiff’s claim that sending the letter on attorney letterhead 12 violated the FDCPA, these missing facts reasonably could have created a ge

nuine issue of 13 materia

l fact to d efeat s ummary judgmen t. Moreov er, def

endants’ contenti on that the affida vit 14 was silent as to the steps taken to obtain additional information without discovery ignores the 15 fact that the affidavit stated that the information sought was within defe ndants’ possession and 16 that def

endants had resis ted discovery . Ina smuch as p laintiff clearly explained

that he so

ught to 17 depose the three affiants, this satisfies the third and fourth require ments of Rule 56(f). Thus, the 18 affidavit substantially complied with the re quirements of Rule 56(f). 19 While the affidavit did not specify with pre cision the information plaintiff 20 believe d he could learn f rom depos ing the t

hree af fiants, p laintiff

cannot be

faulted for fail ing to 21 advise the district court precisely what information he might learn during discover y give n that the 2217

facts sought were exclusively within defendants’ possession and that he had no previous 1 opportunity to develop the rec ord through discovery

. See Mel off , 51 F.3d at 374 (reversing g rant 2 of summary judg

ment in an employment discrimination case w here plaintiff had insufficient 3 opportunity “to explore the motivations and reasons for terminating her employ

ment”); cf. 4 Fitzgerald v. Henderson , 251 F.3d 345, 362 (2d Cir. 2001) (observing that where the district 5 court denied the plaintiff any opportunity to conduct discovery and considered a partial summary 6 judgment motion filed two months after the filing of the complaint, “[f]aulting [plaintiff] for 7 failure to make a showing of . . . matters that would . . . be be yond her per

sonal knowledge [] was 8 incompatible with the court’s denial of discovery ”). 9 “Fed. R. Civ. P. 56(f ) provide s, as inte

rprete d by

court opi nions, tha t when a p arty 10 facing an adversary ’s motion for summary judg ment reasonably

advises the court that it needs 11 discovery to be a ble to present facts needed to defend the motion, the cour t should defer decision 12 of the motion until the party has had the oppor tunity to take discovery

and rebut the motion.” 13 Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc. , 271 F.3d 374, 386 (2d Cir. 2001). 14 Accordingly , we have held that summary judgment should only be g ranted if “ after disc overy , the 15 nonmoving

party has faile d to make a

sufficie nt showing

on an esse

ntial ele ment of [its] c ase 16 with respect to which [it] has the burden of proof.” Hellstrom v. United States Dep’t of Veterans 17 Affairs , 201 F.3d 94, 97 (2d

Cir. 2000)(interna

l quotation

marks omit

ted) (a lterations in 18 original). “Only

in the rarest of cases may summary judgme

nt be granted against a plaintiff w ho 19 has not been afforded the opportunity to conduct discovery .” Id. ; accord Trebor Sportswear Co. 20 v. The Ltd. Stores, Inc. , 865 F.2d 506, 511 (2d Cir. 1989) (“Under Rule 56(f), summary judgment 21 may be inappropr iate where the party

opposing it shows . . . that he cannot at the time present 223 W&A partner Ronald Abramson stated that he reviewe d plaintiff’s “file” after it was

referred by

Lord & Tay

lor before sending the initial letter. Mr. Abramson ave rred that the “file” contained plaintiff’s name, social security number, current address and home and work phone numbers, the account number, the date the acc ount was opened, the date of the last charg e on the account, the date the account was cha rged off and the account ba lance, as well as “a sy

nopsis of [Lord & Tay

lor’s] recent customer service notes reg arding 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 ha d offered a reduced pay

ment on his account and that Lord & Tay lor refu sed to ac cept les s than wha t was owe d.” The a

ffidavit does not, h

owever , state whether the file contained the pay ment history, if any

, on the account or a complete record of Lord & Tay

lor’s customer service notes. 18 facts e ssential t

o justify his opposit

ion. The n

onmoving

party should not b e ‘railr

oaded’ i nto his 1 offer of proof in opposition to summary judgment. The nonmoving party must have had the 2 opportunity to discover information that is essential to his opposition to the motion for summary 3 judgment.” (internal quotations and citations omitted)). 4 The distr ict cour t conclud ed that no discover y w as nece ssary

in this cas e becau se 5 “[t]he par

ties’ disp ute is ove r whethe r they needed to do more

before they could use

their 6 letterhead under the law, and I ’m satisfied from the cases cited by the defendants in their briefs 7 that these lawye

rs did what was expected of them under the law for them to use their letter head 8 to send out the notices.” The district court held that the fact that Mr. Abramson had “che cked 9 that h is cli ent, Lor d & Taylor’ s, las t recor ds sh owed t hat [ the] debt w as sti ll ou tstan ding” 10 satisfied defendants’ obligations. Given the very limited nature of the material Mr. Abramson 11 claimed to have reviewed, however, the district court’s conclusion could only be based on the 12 fact that Lord & T aylor had r eported the debt for collection to W&A with an outstanding balanc e 13 and Lord & Tay

lor’s “synopsis” of its “re cent” customer service notes indicated that plaintiff had 14 offered a reduced pay ment, which had been refused. 3 15 While plain tiff asks us to decl are a min

imum standa

rd requi ring at torney s to 1619

review a copy

of the contract, a credit report, and a full payment history

or statement of account 1

to sa ti sf

y Clomon ’s requirement of meaningful attorney involvement, we decline to do so on the 2 record here, in part because there may be

circumstances where, following discove ry, it becomes 3 clear that the attorney ’s familiarity with the client’s c ontracts and practices would nega te the 4 need to review some if not all of the documents plaintiff seeks to require . For example, an 5 attorney and c lient could have established a practice where by the attorney

has specified that the 6 entire p ay

ment histor

y is to be incl uded in the

summary provided by a client. On this 7 undevelo

ped rec ord, howe

ver, it suffices f

or us to hol d that mer

ely being to ld by

a client t hat a 8 debt is overdue is not enough. See Nielsen v. Dickerson , 307 F.3d 623, 638 ( 7th

Cir. 2002) 9 (holding that the FDCPA was violated where the attorne y “knew nothing

about the debtor and 10 her potential liability bey ond what [the client] had conveyed to him; and [the client] provided 11 [the attor

ney ] only the bare informat ion that [he ] require d in order to complete the bla

nks in his 12 form letter”). 13 Defendants argue that their a ffidavits make clear that they satisfied the FDCPA’s 14 requirement of meaningful attorney involvement. These affidavits, however, lack sufficie nt 15 detail to permit the district court or us to determine that their review was sufficie nt as a matter of 16 law. For

example, M

r. Abra mson state d that: 17 I was the partner who personally re

viewed our client’s file on [Miller] after it’s [sic] 18 referral to W&A. No collection activity can take place until a partner revie ws our client’s 19 file and

exercise s his or he

r indepe ndent pro fessiona

l judgme nt that co llection i s 20 appropriate. At that time, the partner must personally execute the print command of the 21 letter which will be sent to the debtor. 22 23 This conc lusory

langua ge doe s not describe wha t informa tion Abra mson revi ewed to p ermit him 24 to exercis e his “ind epende nt profe ssional jud

gment.” We must assu

me for pu rposes of this 2520

motion for summary judgme nt, however, that it was no more than the very limited information 1 described in his initial affidavit. Thus, while Abramson claimed that W&A attorney s reject or 2 suspend debt-collection referrals “for a multitude of reasons including the matter falling outside 3 of the applicable statute of limitations, the debtor filed bankruptcy making the obligation 4 unenforceable, and the information in the client rec ord is inconsistent or incomplete,” and 5

asserte d that “[a]f

ter my persona l review of Mr. Mill er’s fil e, I

determined that c ollection was, in 6 fact, appropriate and that none of the af oresaid reasons for suspension or rejection of the r eferral 7
was appr

opriate ,” the inf

ormation A

bramson i nitially claimed t hat he re viewed would not enable 8 him to determine whether Miller was in bankruptcy, whether the information in the record was 9 inconsistent or incomplete, whether Miller was or was not obligated to pay the debt, or whether 10 Miller wa s the cor rect de btor. Simila

rly , Abramson’s asse

rtion that “attorney s at W&A r

egular ly 11 reject client referrals afte r a review of the client file indicates the debtor is not obliga ted to pay 12 the account, the alleged debtor is not the corr ect debtor as well as a determination from an 13

attorne

y a t W&A that

additiona l informa tion is nec essary

to support

the claim ,” does not entitle 14
W&A to summary judgmen t on this re cord bec ause we cannot c onclude t

hat the information in 15 plaintiff’s file was adequate to make these kind of judg ments. 16
In a ddition, th e affid

avit submit

ted by UC&S par

tner Mitchell Slamow

itz 17 describing the steps taken by UC&S before its July 18, 2000 letter was se nt merely stated that he 18 reviewed the file sent by W&A through NAN software, which include d “Mr. Miller’s full name, 19 social security number, current address, telephone number, the L ord & Tay

lor account number, 20 the amount of the debt, and a notation that Mr. Miller was an attorney . . . . After reviewing the 21 file, I made the dec ision to send a letter to Mr. Miller and I persona lly signed the letter, dated 224 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 re view included refer ence to s everal

unsucce ssful atte

mpts to con

tact Mr. M iller by

telephone to discu ss the account.” Canter further stated that whe n Miller failed to respond to the April 24, 2000 follow-up letter, “I authorized the pr inting 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, Co hen and Slam owitz on July 12, 2000. ” There is no ev idence in th e record that W &A requested or received any additional information from Lord & Ta ylor before

forwarding the account to UC&S for litigation.

5 With no apparent irony despite their suc cessful efforts to resist discovery , after plaintiff in fo rm ed th e d is tr ic t c ou rt th at W& A t oo k i n o ve r 5 5, 00 0 n ew co ll ec ti on ac co un ts mo nt hl y, “going name, account, last pay ment date; name[,] account, last payment da te, okay, bee

p, beep, beep, letter, letter, letter,” defenda nts objected to the

consider ation of th

is informa

tion beca use it was “not in the record; it’s not true.” 21 July 18, 2000.” This too is insufficient to support the conclusion as a matter of law that any 1 professional judgment was exercised before UC&S sent its collection letter. 4 Cf. Boyd v. Wexler, 2
27 5 F .3 d 6 42 , 6 46 (7 th Ci r. 20 01 ) ( “B ef or e a fo ll ow up le tt er ca n b e r es po ns ib ly a pp ro ve d b y a 3 lawyer, he

must inspect the file to determine that there has been no partial pay ment or other 4
response

from the d

ebtor . . . .”). Simila

rly , while Sla

mowitz state d that “[a]t

the time of

this 5 initial review of Mr. Miller’s file, I a lso determined that a summons and complaint should be 6 filed if Mr. Miller did not respond to the letter dated July 18, 2000,” the affidavit does not 7 demonstrate any

basis for this determination. 8 Finally, we a lso note that plaintiff claims that W&A takes in over 55,000 new 9 collection accounts monthly via e lectronic transmission. 5 If pl aintiff’ s accoun t is ty pical, th is 10 suggests that W&A could have mailed over 110,000 letters a month. While defendants argue 11 that this f

act is not i

n the rec ord and that plainti ff’s emphasis on e lectron ic transm ission is 12 “factually and legally irrelevan t,” if disco very in this case were t o reveal that W&A and UC&S 1322

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

fidavits, reviewed the collection files with such speed that no independent judg ment 2 could be found to have been exercised, and then issued form c ollection letters with the push of a 3 button, a reasonable jury could conclude that W&A and UC&S lacked sufficie nt professional 4 involvement with plaintiff’s file that the letters could be said to be from an attorney

. See, e.g. , 5 Nielsen , 307 F.3d at 637 (“[T]he numbers (recall that [the client] referred [the attorney ] an 6 average of some 2,000 accoun ts per mon

th) and a ssembly

-line fa shion in wh

ich [the at torney ’s] 7 letter was issued betray the purely nominal nature of his participation in the collection process.”); 8 Boyd , 275 F.3d at 648 (holding that the high volume of mail handled by a debt-collecting 9 attorney wa s relevant to his credibility whe re the attorney

claimed in an affidavit to have 10 reviewed plaintiff’s file before sending letter, because the volume of mail sugg ested both that the 11 attorney mig

ht not have had time to review the file and that he might not remember accurately

). 12 If, on the other hand, it become s clear after discovery that W&A and UC&S do 13 indeed review information reasonably calculated to permit them to make the kind of 14 determinations Abramson claims to have made before sending the collection letters, the letters 15 would be in compliance with the FDCPA. See, e.g. , Nielsen , 307 F.3d at 638 (“[A]n attorney 16 must have some professional involvement with the debtor’s file if a delinquency letter sent under 17 his name is

not to be c onsidere d false or mislead ing in vio lation of s ection 16 92e(3) a nd (10).”); 18 Boyd , 275 F.3d at 648 (requiring some showing of “ professional judgment concerning the 19 existence

of a vali d debt” be fore an attorne y ma y se nd a colle ction lett

er); Clomon , 988 F.2d at 20 1321 (“[T]he use of an attorney ’s signature implies—at least in the absence of lang uage to the 21 contrary

—that the attorney sig

ning the letter formed an opinion about how to manage the case of 2223

the debtor to whom the letter was sent.”). 1 In sum, by relying on the attorneys’ a

ffidavits and not allowing plaintiff any 2 opportunity to investigate pre cisely what informa tion the affiants reviewed, how much time was 3 spent reviewing plaintiff’s file, and whether any leg al judgment was involved with the decision 4 to send the

letters a nd ultimate ly to

initiate li tigation — facts not clear

ly a ddresse d in defe

ndants’ 5 conclusory a

ffidavits but highly re levant to the affiants’ credibility and to whether the letters 6 complied with the FDCPA — the grant of summary judgment on this claim was premature. 7
III. UC&S’s Attempt to Collect A ttorneys’ Fees 8 Plaintiff also argues that because the F DCPA makes it illegal to attempt to collect 9 an amount not “expressly authorized by the agreement crea

ting the debt or permitted by law,” 15 10 U.S.C. § 169 2f(1), t he filing of the sta te court complain t by UC&S see

king $32 3.63 in att

orney s’ 11 fees violates the FDCPA. While plaintiff does not dispute that the credit card ag reement here 12 provided for pay

ment of attorneys’ fees, he contends that Ohio law prohibits collection of 13 attorneys’ f

ees in any c onsumer contract of adhesion and that the continge nt 20% fee sought by 14
UC&S was

to be shar

ed with NA

N, in viola

tion of Ne

w York’s profess ional eth

ics rules . Thus, 15 plaintiff’s argument goes, the fe es UC&S sought to collect cannot be said to be authorized by the 16 agreement or by

law. 17 As an initial matter, we conclude that plaintiff has waived the ar gument that the 18 collection of attorney s’ fees is barred by Ohio law. Miller did not allege in the complaint that 19 attempting to collect attorneys’ fees under a contract of adhe sion violates Ohio law, nor did he 20 raise this issue in opposition to the motion to dismiss or at oral argument. Significantly, pla intiff 21 also neve

r sough t to amend

the compl aint to ass ert this c laim. Acc ordingl y, he canno t now rely 2224

on it as a basis for his FDCPA claim. See Caiola v. Citibank, N.A. , 295 F.3d 312, 327 (2d Cir. 1 2002) (“[W]e generally do not consider arguments not raised below..”). 2 Defend ants maint

ain that p laintiff

lacks sta nding to p

ursue thi s claim be cause it is 3 undisputed that plaintiff never paid any attorneys’ f ees to either UC&S or NAN, as the 4

un de rl yin g l aw su it in it ia te d b y UC &S wa s s et tl ed wi th di ff er en t c ou ns el . A cc or di ng ly, 5 defendants argue that plaintiff did not suffer any identifiable injury . The FDCPA provides for 6 liability for attempting to collect an unlawful debt, however, and permits the recove ry of 7 statutory damag es up to $1,000 in the absence of actual damag es. Thus, courts have held that 8 actual damages are not re quired for standing under the FDCPA. See, e.g. , Keele v. Wexler , 149 9 F.3d 589, 594 (7th Cir. 1998) (“[T]he plaintiff who admittedly owes a le gitimate debt has 10 standing

to sue if the Act is vi olated by an unprin

cipled de bt collec tor.”); Baker v

. G.C. Ser vs. 11 Corp. , 677 F.2d

775, 777 ( 9th Cir. 198 2) (same ); cf. Gambardella v. G. Fox & Co. , 716 F.2d 12 104, 108 n.4 (2d Cir. 1983) (noting that “[i]t is well settled . . . that proof of actual deception or 13 damages is unnecessary to a recovery

of statutory damages” under the Truth in Lending Act). 14 Accordingly , we join those courts and hold that the fact that plaintiff did not ever pay any 15

attorne

ys’ fees to N

AN does not neces sarily

sugge st that he was not inju red for purposes of his 16 FDCPA cla

im, if he c an show that UC&S attempted to collect money in violation of the FD CPA. 17 We there fore tur n to the dis

positive q uestion be fore us: whether the fee s sought t

o 18 be collected were not permitted by the contract or by

law. Miller argues that the $323.63 sought 19 by UC&S in the verifie d complaint was not an amount permitted by la w because UC&S intended 20 to share some portion of the fee with NAN in violation of state ethics rules. We find no support 21 for plain

tiff’s po sition that

an attor ney violates t he FDCPA

by a ttempting to collec t a facia lly 226 Plaintiff also asserts that UC&S consistently see ks 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 tha

t a lawyer does not generating at least 322 [sic] dollars in fees. So I cannot say that that amount was excessive or unreasonable given wha t went on here, the sending of a few letters or, therefore, that Upton Cohen’s allege d sharing of part of that fee, some 40 dollars, with the network that referred them to the client, was c ontrary to the e xpress authorization of the agreement to also be liable for attorne y’s fee s here.” 25 reasona ble fee — consiste

nt with the

terms of t

he under lyin g agr eement —

with the in

tent late r to 1 use the money in some otherw ise prohibited manner. 6 2 Miller also argues even if a violation of state prof essional ethics rules does not 3 give rise to a private right of ac tion, it is evidence that defendants violated the FDCPA, noting 4 that “many of the e xpress prohibitions of the FDCPA involve conduct that would also be a 5 violation of a lawyer ’s ethical standards.” Appellant’s Br. at 30. Eve n if this is true, however, 6 plaintiff

’s cause of actio n under § 1692f(1)

require s a showin

g that de fendant s attempte d to 7 col lec t an amo unt not ex pre ss ly pe rmi tt ed e it her by th e ag ree men t cr eat in g th e de bt or b y law . In 8 other words, plai

ntiff sta tes a cla im only if the $323.63 sought by UC&S in the state court 9 complaint was not permitted by the L ord & Tay

lor agreement or by

law. Thus, the cases cited by 10 plaintiff where courts have considered c ertain conduct that violates professional ethics rules as 11 also deceptive or misleading in violation of the FDCPA’s prohibition of the use of “f alse, 12 decepti

ve or misle ading r

eprese ntation[s],”

15 U.S.C. § 1 692e, or

as violati ve of othe r FDCPA 13 provisions, are inapposite. See Appellant’s Br. at 31; Appellant’s Reply Br. at 12-13. 14 In summary, plaintiff challenges not the reasonablene ss of the fee itself but rather 15 what UC&S later intended to do with its fee. The district court corre ctly found that plaintiff 16 failed to state a claim in that the amount UC&S sought to collect was permitted by the agreement 177 We there fore do n ot reach defend

ant NAN’ s alterna

tive arg uments tha

t it canno t be held liable under the FDCPA because it is not a debt collector within the meaning of the FDCPA nor do we reach the argume

nt advanced by

all defendants that the proposed fee sharing agreement betw een N

AN an d the affi liate law f irms c ompor

ts wit h New York prof essional ethics

rule s. We express no view on that issue. 26 and was not prohibited by law

. 7 1
IV. The W&A Collection Letter 2 Finally , Miller a rgues t hat the di strict co

urt erro neously grante d defend

ants’ 3 motion to dismiss his claim that the February 25, 2000 collection letter sent by W&A violates 4 § 1692g because it would confuse the least sophisticated c ustomer as to his or her rights under 5 the FDCPA . On appe al, Miller raises th ree obje ctions to the letter : (1) the f ailure o f the che cklist 6 on the front of the letter to include an option to request validation of the debt could confuse a 7

consumer, notwithst anding the notic e on the r

everse of the letter advising tha

t reques ts for de

bt8 validation must be in writing; (2) the validation notice itself is deceptive because it suggests that 9 the listed information is an exclusive listing of a consumer’s rights under the FD CPA; and (3) the 10 listing of

forty -four c ities as “

NAN aff iliates” on the let terhea d is mislea

ding be cause it

could 11 suggest to a consumer that W&A was a dmitted to practice law in all of those jurisdictions. 12 Defendants again raise a preliminary issue of wa

iver. Plaintiff’s complaint alleges 13 that the le

tter was misleadin

g beca use it iden

tified onl y c ertain F DCPA rig

hts (Compla

int, at ¶ 14 77), and instructed the consumer to call W&A to resolve the matter ( Complaint, at ¶¶ 88-92). In 15 opposition

to the motion to dismiss, plaintiff argue d only

that the le

tter viola ted the F DCPA 16 because “a reasonable r eading of the notice on [the] initial debt collection letter is that consumers 17 have only the rig

hts specified in the letter and not others.” Pl. Opp. to Mot. to Dismiss, at 19-21. 18 Finally, when a sked by the district court a t oral argument to articulate how the letter violated the 1927

FDCPA, plaintiff explained: 1 The valid ation notic e says, after

reading the notic e, call if

appropr iate. A c all is 2 not suffic ient to pre serve y our rig hts under the FDCPA

. . . . As a matter of

fact, 3 the only thing that the notice encourages [consumers] to do in writing is to check 4 those var ious boxes . . . . None of

these boxe s assume that I c ontest this debt. 5 6 Accordingly , because plaintiff was given numerous opportunities to clar ify the claims at issue, 7 and failed to raise the claim that listing the forty -four NAN affiliated firms was dece ptive or 8 misleading at any

time before this appeal, we find this argument to be wa ived. See Caiola , 295 9 F.3d at 327. 10 As previously noted, 15 U.S.C. § 1692e bars the use of “any

false, deceptive, or 11 misleading representation or means in connection with the collection of any debt.” In addition, 12 15 U.S.C. § 1692g requires debt collectors to include a “validation notice” either in the initial 13 communication with a consumer in connection with the collection of a debt or within five day s of 14 that initia

l communic ation, wh

ich must inf

orm the c onsumer t

hat he or she has c ertain r

ights, 15 including the rights to make a written request for verification of the debt and to dispute the 16 validity of debt. See 15 U.S.C. § 1692g(a). 17 “When determining whether § 1692g has be en violated, an objective standard, 18 measured by

how the ‘least sophisticated consumer’ would interpret the notice re ceived from the 19 debt collector, is applied.” Russell v. Equifax A.R.S. , 74 F.3d 30, 34 (2d Cir. 1996) (citing 20 Clomon , 988 F.2d at 1318 (h

olding that the least sophistic ated con sumer sta ndard ap plies to 21 whether § 1692e has been violated)). “When a notice contains language that ‘overshadows or 22 contradicts’ other languag e informing a consumer of her rig hts, it violates the Act.” Id. (citing 23
Graziano v. Harrison , 950 F.2d 107, 111 ( 3d Cir. 199 1)). “A debt coll ection notice is 2428

overshadowing or contradictory if it fails to convey the validation informa tion clearly and 1 effectively

and thereby

makes the least sophisticated consumer uncertain as to her r ights.” 2 Savino v. Computer Credit, Inc. , 164 F.3d 81, 85 (2d Cir. 1998). 3
In Russell, as in the instant case, the back of the notice included a va lidation 4 notice that complied with the FDCPA. The front of the Russell letter, however, instructed the 5 debtor, i

n all cap ital lette

rs, that “ If y

ou do not dis

pute this c laim (see

revers e side) a

nd wish to 6
pay

it within the

next 10 day

s we will not post this c ollection to your file. . . . I

t is our pra

ctice to 7 post unpaid collections in the amount of $25 or more to individual credit records.” Russell , 74 8 F.3d at 34. We found that this notice was contradictory because the least sophisticated consumer 9 “could readily

believe — despite the inclusion of the validation notice — that were she to take 10
any

course other tha

n pay ment to Equ

ifax within 1 0 day s, it would p ermane ntly affect her cr

edit 11 record.” Id. Similarly, in Savino , we held that a debt collection letter stating that “[t]he 12 [creditor] insists on immediate payment or a valid reason f or your fa ilure to make payme

nt” was 13 contradictory , despite the inclusion of the validation notice on the back of the letter, beca use the 14 least sophisticated consumer could be confused by the “decision to ask for immediate pay ment 15 without al so explainin g that its demand di d not over

ride the consumer ’s righ

ts under [§ 1692g] to 16 seek validation of the debt.” 164 F.3d at 85, 86. 17 The W&A letter clearly advises the reader, in the main body of the letter, “ [a]

fter 18 reading the important notice on the reverse ” to “call our office to resolve this matter” “ if 19 appropriat

e .” (emphasis added). The notice on the back, in turn, corr ectly instructs consumers 20 that they

should noti fy

W&A in wr

iting to r equest ve rificat ion of the debt or to

dispute th e debt, 21 while the front of the letter instructs the recipient that “[w]hen pay ing the balance in full or if y ou 2229

are una ble to ca ll our off ice, che ck one of

the option s below a

nd retur n the bottom portion o f this 1 letter . . . .” While the options detailed on the bottom of the letter do not include requesting 2 validation of the de bt, the bot

tom of the l etter sta

tes in lar ge-pr int, capi tal lette rs, “BEFORE 3
RESPONDING TO THI S LETTER SEE REVERSE SIDE FOR I MPORTANT NOTICE.” 4 Thus, the reader is directed to the corre ct validation notice in several places, and is thereby 5 advised of his or her FDCPA rights. See McStay v. I.C. Sys., Inc. , 308 F.3d 188, 191 (2d Cir. 6 2002) (“[W]hen a prominent instruction in the body of the letter wa rns that there is important 7 information on the reverse side, a reasonable reader, even if unsophisticated, would turn the 8 paper over and read the bac k.”). 9 With these repeated instructions to review the validation notice on the back of the 10 letter be fore re sponding to the lett

er, eve n the lea st sophistic ated con sumer wou ld realize that it is 11 “approp

riate” t o contact W&A’s of

fice by phone onl

y if the consu

mer did no t wish to exe

rcise 12 his or her FDCPA rights as outlined on the reverse of the letter. Where a validation notice 13 plainly specifies that F DCPA contact must be in writing, and nothing on the front of the letter 14 suggests in any

way that an instruction to call was intended to override the requirements outlined 15 in the validation notice, we do not believe that a reasonable consumer — having twice been 16 instructed to review the validation notice before taking a ny f urther a ction — who wished to 17 exercise his or her FDCPA validation rights could be misled into thinking that the clear 18 obligat

ion to req uest valid ation in wr

iting wa s somehow

modified by e ither the

invitation

to call 19 if appropriate or the four options on the bottom of the letter. As this Court noted in Clomon , 20 “courts have consistently applied the least-sophisticated-consumer standard in a manner that 21 protects debt collectors against liability for unreasonable misinterpretations of collection 2230

notices.” 988 F.2d at 1319. We therefore ag ree with the district court’s conclusion that the letter 1 was not mis leading or dece ptive on these gr

ounds. 2 Finally, plaintiff ar gues that the letter is deceptive because the validation notice, 3 which states that the recipient “is entitled to certain information that sets forth y our rights and 4 obligat

ions under

the law,” and then d

escribe s what “[t]he

law provides,” in

correctly s

ugge sts to 5 the least sophisticated consumer that the listed information is an exclusive list of a consumer’s 6 FDCPA rights. Plaintiff does not, however, dispute that the notice includes ever ything that the 7 law requires be included in the validation notice. Bec ause a consumer has no right to written 8 notice about his or her other FDCPA rights, we do not find this langua ge misleading or 9 deceptive. See Savino , 164 F.3d at 86 (holding that the languag e at issue in that case was 10 insufficient under the FDCPA, and proposing as an a cceptable alternative the following notice : 11 “Although we have requested that y ou make immediate pay

ment or provide a valid reason for 12 nonpayment, y

ou still have the right to make a written request . . . for more infor mation about the 13 debt. Your rights are described on the reverse side of this notice .”) (emphasis added). Further, 14 by advising that the F DCPA entitles a debtor to “certain information,” the letter itself addre sses 15 plaintiff’s concern, and cannot reasona bly be rea d as suggesting that the rig hts described in the 16 notice are an exclusive listing. 17 Accordingly , the initial collection letter sent by W&A was not false, deceptive or 18 misleading as a matter of law, and the motions to dismiss this claim were properly granted. 19
2031 CONCLUSION 1 For the foregoing r easons, we vacate the gra nt of summary judgme

nt on plaintiff’s 2 claim that W&A and UC&S violated the FDCPA by sending debt collection letters that 3 purported to be, but were not in any meaningful way , “from” attorney s and remand for further 4
procee dings, in

cluding discover y, on this clai

m. We affi

rm the g rant of the motions to

dismiss 5 the two re

maining claims. 6