IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JEAN EDDIS, on behalf of

herself and all those

similarly situated,

 Plaintiff,

v.

MIDLAND FUNDING, L.L.C. and

PRESSLER & PRESSLER, L.L.P.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-3923 (JBS/AMD)

AMENDED OPINION

APPEARANCES:

Donald M. Doherty, Jr. Esq.

THE LAW OFFICE OF DONALD M. DOHERTY, JR.

125 North Route 73

West Berlin, NJ 08091

Counsel for Plaintiff

Mitchell L. Williamson, Esq.

PRESSLER AND PRESSLER, L.L.P.

7 Entin Road

Parsippany, NJ 07954

Counsel for Defendant Pressler & Pressler, L.L.P.

SIMANDLE, Chief Judge: 

I. INTRODUCTION

Plaintiff Jean Eddis filed this putative class action

against two Defendants, Pressler and Pressler, L.L.P. and Midland

Funding L.L.C., alleging that the debt-collection letter she

received from Defendants was deceptive, unfair and confusing

under 15 U.S.C. § 1692, et seq., the Fair Debt Collection

Practices Act (“FDCPA” or “the Act”). Defendant Midland Funding

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and Plaintiff have previously entered into a joint stipulation of

dismissal as to Midland Funding. [Docket Item 19.]

Presently before the Court is the motion to dismiss of

Defendant Pressler and Pressler, L.L.P. (“Pressler” or

“Defendant”). [Docket Item 14.] The principal issues to be

decided are whether Defendant’s debt collection letter (1)

overshadowed or contradicted the debt validation provisions

mandated by section 1692g, or (2) falsely represented or implied

that the debt collection letter was sent from an attorney in

violation of section 1692e. Because, in part, the Court has

determined that the letter violates neither of these provisions,

as explained in greater detail below, the Court will dismiss

Plaintiff’s claims against Defendant Pressler and Pressler.

II. BACKGROUND

The following are taken from the Complaint and indisputably

authentic documents that form the basis of the claims; the

following facts are assumed to be true for the purposes of this

Opinion. Goldenberg v. Indel, Inc., 741 F. Supp. 2d 618, 624

(D.N.J. 2010). Plaintiff is an individual who resides in Haddon

Township, Camden County, New Jersey. Compl. ¶ 1. Defendant

Pressler is a New Jersey law firm. Compl. ¶ 10. On February 24,

2011, Defendant sent a letter to Plaintiff seeking to recover a

debt she owed to Midland Funding, L.L.C. on a credit card

obligation Midland Funding purchased from First National Bank of

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Omaha. Def’s Brief in Supp. of Mot. to Dismiss Ex. A; Compl. ¶¶

5-7, 12. The letter was presented on Defendant’s law firm

letterhead but it was unsigned. Compl. ¶ 13; Williamson Cert.,

Ex. A. The letter, after referencing Plaintiff’s name, account

and information, states as follows:

We shall afford you this opportunity to pay this debt

immediately and avoid further action against you. Make

your check or money order payable to Pressler and

Pressler, LLP and include your File Number [] and remit

to:

Pressler and Pressler, LLP 7 Entin Rd. Parsippany, NJ

07054-5020

Payment can be made on the website www.paypress1er.com.

We also accept Visa/Mastercard and American Express. If

you choose this payment option return this letter along

with:

Name as it appears on Credit Card / Street # & Zip /

Expires / Credit Card # / Security Code / Amount /

Signature

If you are unable to pay the balance in full and would

like to discuss payment arrangements, please contact us

at (888) 312-8600.

At this time, no attorney with this firm has personally

reviewed the particular circumstances of your account.

However, if you fail to contact this office, our client

may consider additional remedies to recover the balance

due.

PLEASE READ THE FOLLOWING PROVIDED TO YOU PURSUANT TO

FEDERAL STATUTE:

This communication is from a debt collector. This is an

attempt to collect a debt. Any information obtained will

be used for that purpose. Unless you notify this office

within 30 days after receipt of this notice that you

dispute the validity of the debt, or any portion thereof,

this office will assume this debt is valid. If you notify

this office in writing within 30 days from receipt of

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this notice that the debt or any portion thereof is

disputed, this office will obtain verification of the

debt or obtain a copy of a judgment and mail you a copy

of such judgment or verification. Upon your request in

writing, within 30 days after receiving this notice, this

office will provide you with the name and address of the

original creditor, if different from the current

creditor.

Def’s Brief in Supp. of Mot. to Dismiss Ex. A. 

On July 7, 2011, Plaintiff filed a complaint with this Court

against Defendants Pressler and Midland Funding. [Docket Item 1] 

On November 14, 2011, Defendant Midland Funding and Plaintiff

entered into a joint stipulation of dismissal as to Midland

Funding. [Docket Item 19.] Plaintiff alleges that Defendant

Pressler’s debt collection practices violated sections 1692e and

1692g of the FDCPA, as well as the New Jersey Rules of

Professional Conduct. Compl. ¶¶ 13-22. Defendant Pressler

subsequently filed the motion to dismiss that is presently before

the Court.

III. DISCUSSION

A. Standard of Review

To give a defendant fair notice, and permit early dismissal

if the complained-of conduct does not provide adequate grounds

for the cause of action alleged, a complaint must allege, in more

than legal boilerplate, those facts about the defendant’s conduct

giving rise to liability. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007); Fed.R.Civ.P. 8(a) and 11(b)(3). These

factual allegations must present a plausible basis for relief

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(i.e., something more than the mere possibility of legal

misconduct, and more than mere conclusory allegations). See

Ashcroft v. Iqbal, 556 U.S. 662, --, 129 S.Ct. 1937, 1951 (2009).

In its review of a motion to dismiss pursuant to Rule

12(b)(6), Fed. R. Civ. P., the Court must “accept all factual

allegations as true and construe the complaint in the light most

favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). “In deciding

motions to dismiss pursuant to Rule 12(b)(6), courts generally

consider only the allegations in the complaint, exhibits attached

to the complaint, matters of public record, and documents that

form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217,

222 n.3 (3d Cir. 2004).

B. Fair Debt Collection Practices Act

1. Statutory Background

Congress enacted the FDCPA in 1977 in response to the

“abundant evidence of the use of abusive, deceptive, and unfair

debt collection practices by many debt collectors.” 15 U.S.C. §

1692(a). Congress was concerned that “[a]busive debt collection

practices contribute to the number of personal bankruptcies, to

material instability, to the loss of jobs, and to invasions of

individual privacy.” Id. The purpose of the Act, Congress

explained, was not only to eliminate abusive debt collection

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practices, but also to “insure that those debt collectors who

refrain from using abusive debt collection practices are not

competitively disadvantaged.” Id. § 1692(e). After determining

that the existing consumer protection laws were inadequate,

Congress gave consumers a private cause of action against debt

collectors who fail to comply with the Act. Id. § 1692k.

2. “Least Sophisticated Debtor”

Because the FDCPA is a remedial statute, the Third Circuit

has instructed courts to “construe its language broadly so as to

effect its purpose.” Lesher v. Law Offices of Mitchell N. Kay,

PC, 650 F.3d 993, 997 (3d Cir. 2011) (citing Brown v. Card Serv.

Ctr., 464 F.3d 450, 453 (3d Cir. 2006)). Accordingly,

communications from lenders to debtors are analyzed from the

perspective of the “least sophisticated debtor.” Brown, 464 F.3d

at 454. “The basic purpose of the least-sophisticated [debtor]

standard is to ensure that the FDCPA protects all consumers, the

gullible as well as the shrewd. This standard is consistent with

the norms that courts have traditionally applied in

consumer-protection law.” Id. at 453 (quoting Clomon v. Jackson,

988 F.2d 1314, 1318 (2d Cir. 1993)). “‘Laws are made to protect

the trusting as well as the suspicious.’” Id. (quoting Federal

Trade Comm’n v. Standard Educ. Soc’y, 302 U.S. 112, 116 (1937)).

The Third Circuit therefore has noted that although the

“‘least sophisticated debtor’ standard is a low standard, it

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‘prevents liability for bizarre or idiosyncratic interpretations

of collection notices by preserving a quotient of reasonableness

and presuming a basic level of understanding and willingness to

read with care.’” Lesher, 650 F.3d at 997 (quoting Wilson v.

Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000)). “Even the

least sophisticated debtor is bound to read collection notices in

their entirety.” Campuzano–Burgos v. Midland Credit Mgmt., 550

F.3d 294, 299 (3d Cir. 2008).

3. Debt Validation Provisions

Defendant seeks to dismiss Plaintiff’s claims alleging

violations of section 1692g(a) because “the collection letter

does not emphasize one option over the other . . . and does not

overshadow or contradict the statutorily required validation

notice.” Def’s Brief in Supp. of Mot. to Dismiss 10.

Under the section 1692g(a) of the FDCPA a debt collector

must include the following information in a debt collections

letter to a consumer:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days

after receipt of the notice, disputes the validity of the

debt, or any portion thereof, the debt will be assumed to be

valid by the debt collector;

(4) a statement that if the consumer notifies the debt

collector in writing within the thirty-day period that the

debt, or any portion thereof, is disputed, the debt

collector will obtain verification of the debt or a copy of

a judgment against the consumer and a copy of such

verification or judgment will be mailed to the consumer by

the debt collector; and

(5) a statement that, upon the consumer’s written request

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within the thirty-day period, the debt collector will

provide the consumer with the name and address of the

original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a). See also Ardino v. Lyons, Doughty &

Veldhuis, P.C., Civ. No. 11-848, 2011 WL 6257170, at *4 (D.N.J.

Dec. 14, 2011) (quoting statute). “Paragraphs three, four, and

five of Section 1692g(a) comprise what is known as ‘the

validation notice--the statements that inform the consumer how to

obtain verification of the debt and that [the consumer] has

thirty days in which to do so.’” Ardino, 2011 WL 6257170, at *4

(quoting Wilson, 225 F.3d at 353-54). “[T]he debt validation

provisions of section 1692g were included by Congress to

guarantee that consumers would receive adequate notice of their

rights under the law.” Wilson, 225 F.3d at 354. 

Therefore, “compliance with the requirements of Section

1692g necessitates more ‘than mere inclusion of the statutory

debt validation notice in the debt collection letter--the

required notice must also be conveyed effectively to the

debtor.’” Ardino, 2011 WL 6257170, at *4 (quoting Wilson, 225

F.3d at 354); see also Graziano v. Harrison, 950 F.2d 107, 111

(3d Cir. 1991). Thus, a debt collector can violate § 1692g if it

sends a debtor a qualifying letter that contains the statutorilyrequired validation notice, but that notice is contradicted or

overshadowed by other, perhaps more prominent, content of the

letter.

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i. Analysis

Plaintiff claims that the February 24, 2011 letter she

received from Defendant was in violation of the FDCPA because it

overshadowed or contradicted the required validation notice under

section 1692g(a). Compl. ¶¶ 14-16. Additionally, Plaintiff

claims that the letter violates section 1692e of the FDCPA, which

prohibits the use of “false, deceptive, or misleading

representation or means in connection with the collection of any

debt.” 15 U.S.C. § 1692e.

Specifically, Plaintiff alleges that Defendant’s “letter

creates a sense of urgency,” because Defendant is a law firm, and

“that the debt be paid ‘immediately.’” Compl. ¶¶ 14-16. This

language, Plaintiff argues, “overshadows” the validation notice

containing “a 30 day right to dispute the debt,” as well as

“confuses and/or misleads” Plaintiff as to that right. Compl. ¶¶

14-16. Plaintiff also claims that the structure and font of the

validation notice “offsets and subordinates the validation

rights,” thus, overshadowing them. Pl’s Brief in Opp. to Defs’

Mot. 9. 

Defendant argues that Plaintiff’s alleged “‘urgency’

presented by the . . . collection letter by and through (1) a

demand to ‘pay this debt immediately’ and (2) use of the word

‘immediately’” does not overshadow or contradict the validation

notice. Def’s Brief in Supp. of Mot. to Dismiss 6.

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In Wilson, the Third Circuit concluded that the collection

letter at issue was not deceptive under section 1692g. Wilson,

225 F.3d at 351-52. The letter in Wilson, sent by a non-law firm

corporation, began: “Our client has placed your account with us

for immediate collection. We shall afford you the opportunity to

pay this bill immediately and avoid further action against you.”1

Id. at 352 (emphasis added). Two paragraphs later, the

debt-validation notice required by section 1692g was furnished:

“Unless you notify this office within 30 days after receiving

this notice that you dispute the validity of this debt or any

portion thereof, this office will assume this debt is valid.”2

Id. The Third Circuit “determined that the opening paragraphs of

the letter did not ‘overshadow[] or contradict[] the validation

notice such that the least sophisticated debtor would be confused

. . . [about] his rights.’” Rosenau v. Unifund Corp., 539 F.3d

218, 222 (3d Cir. 2008) (quoting Wilson, 225 F.3d at 353). The

court held that the letter presented the debtor with the option

Compare the disputed language in Wilson with the 1

disputed language at issue in this case: “We shall afford you

this opportunity to pay this debt immediately and avoid further

action against you.” Def’s Brief in Supp. of Mot. to Dismiss Ex.

A.

Again, compare the validation notice in Wilson with the 2

validation notice at issue in this case: “ Unless you notify this

office within 30 days after receipt of this notice that you

dispute the validity of the debt, or any portion thereof, this

office will assume this debt is valid.” Def’s Brief in Supp. of

Mot. to Dismiss Ex. A.

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to “(1) . . . pay the debt immediately and avoid further action,

or (2) notify [the collection agency] within thirty days . . .

that he disputes the validity of the debt.” Wilson, 225 F.3d at

356. Furthermore, the court held that the letter did not

“‘emphasize one option over the other’ or encourage the debtor to

waive his right to contest the debt.” Rosenau, 539 F.3d at 222

(quoting Wilson, 225 F.3d at 356). Thus, the Third Circuit held

that “the letter could not be reasonably read to have two or more

different meanings and it was not deceptive under 15 U.S.C. §

1692g.” Id.

Additionally, the Third Circuit held that the “physical

characteristics and form of the letter” did not overshadow or

contradict the validation notice in Wilson. Wilson, 225 F.3d at

356. “The court acknowledged that the validation provisions were

found in the body of the letter, on the front page of the letter,

. . . [and] was printed in the ‘same font, size and color typeface.’” Panto v. Prof’l Bureau of Collections, Civ. No. 10-

4340, 2011 WL 843899, at *3 (D.N.J. Mar. 7, 2011) (quoting

Wilson, 225 F.3d at 356).

Here, a review of the physical characteristics of the debt

collection letter reveals that the required validation notice is

on the front of the letter, and, contrary to Plaintiff’s claim,

is of the same font, size, and format as the rest of the letter. 

See Def’s Brief in Supp. of Mot. to Dismiss Ex. A. In Panto v.

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Professional Bureau of Collections, the court noted that:

Although the validation provision appears in a separate

paragraph after the signature line, and thus technically

outside the body of the letter, its importance is not

minimized by its placement in the letter. No emphasis is

placed on any particular statement in the letter: the

letter does not include any bold-faced text; no

statements are typed in all-capital letters (aside from

the Plaintiff’s address at the top of the letter); and,

no one section of the letter is sized differently than

any other. If anything, the conditional language

(“Unless you notify this office within 30 days”) and

placement of the validation provision right after the

signature line gives it slightly greater aesthetic

emphasis than the rest of the letter.

Panto, 2011 WL 843899, at *3. Here, the validation notice is in

precisely the same position as the validation notice in Panto,

except that in the present case it appears in the body of the

text, which has no signature line. See Def’s Brief in Supp. of

Mot. to Dismiss Ex. A. Moreover, the collection letter in Panto

did not contain any bold-face text; here, preceding the

validation provision is a bold-faced, all-capital cautionary

statement that reads: “PLEASE READ THE FOLLOWING PROVIDED TO YOU

PURSUANT TO FEDERAL STATUTE.” See Def’s Brief in Supp. of Mot.

to Dismiss Ex. A. Thus, such an emphatic statement gives even

greater prominence to the subsequent validation notice than was

the case in Panto.

Plaintiff further argues that the following provision in the

letter overshadows or contradicts the validation provision in

violation of the FDCPA: “We shall afford you this opportunity to

pay this debt immediately and avoid further action against you.

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Make your check payable to Pressler and Pressler . . .” Def’s

Brief in Supp. of Mot. to Dismiss Ex. A. Plaintiff argues that

the word “immediately” is contradictory or overshadows the

validation statement. Compl. ¶¶ 14-16. In Wilson, the plaintiff

was presented with two options, “(1) an opportunity to pay the

debt immediately and avoid further action, or (2) notify [the

collector] within thirty days after receiving the collection

letter that he disputes the validity of the debt.” Wilson, 225

F.3d at 356. Here, Plaintiff claims that she was presented with

three options: (1) “Pay in full immediately,” (2) “Pay over

time,” or (3) “Dispute the debt.” Pl’s Brief in Opp. to Def’s

Mot. 10. Plaintiff thus argues that because Defendant’s

collection letter presents three options, rather than two, as in

Wilson, and provides no explanation between the options, it

overshadows the validation provision and is unfair. Pl’s Brief

in Opp. to Def’s Mot. 10-12. The Third Circuit found, though,

that the collection letter in Wilson did “not emphasize one

option over the other, or suggest that Wilson forego the second

option in favor of immediate payment.” Wilson, 225 F.3d at 356. 

There was no explanation needed; the court held that it “did not

believe the least sophisticated debtor would interpret [the

clause--]‘afford you the opportunity to pay this bill

immediately’[--]as a demand for payment in less than thirty days,

especially since this ‘opportunity’ is followed, almost

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immediately, by the required notice to dispute the debt.” Id. at

357. 

Thus, analogous to Wilson, the disputed language at issue

here does not induce the least sophisticated debtor to overlook

his statutory rights to dispute the debt within thirty days. The

addition of a third option for the Plaintiff to negotiate a

payment plan does nothing to increase the confusion or overshadow

the option to dispute the debt; it is a milder variant of the

“immediate payment” option. The Court finds that the least

sophisticated debtor is capable of considering three options in

addition to merely two, when described with the clarity presented

here. Therefore, the Court will grant Defendant’s motion to

dismiss with respect to Plaintiff’s section 1692g(a) claims.

4. Attorney Involvement Disclaimer

Defendant also seeks to dismiss Plaintiff’s claims alleging

a violation of section 1692e because the “least sophisticated

debtor would not be misled as to attorney involvement.” Def’s

Brief in Supp. of Mot. to Dismiss 17. Plaintiff argues that the

disclaimer--“[a]t this time, no attorney with this firm has

personally reviewed the particular circumstances of your

account”--has been deemed a violation of the FDCPA by the Third

Circuit and is misleading. Specifically, Plaintiff argues that

Defendant’s letter, printed on letterhead of a law firm, despite

the presence of the disclaimer, violates the prohibition of §

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1692e(3), which makes it a violation of the FDCPA to create

“[t]he false representation or implication that any individual is

an attorney or that any communication is from an attorney.” 15

U.S.C. § 1692e(3).

The Third Circuit analyzed the application of section 1692e

of the FDCPA to debt collection letters from attorneys in Lesher

v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993 (3d Cir.

2011). In its analysis, the court cited numerous cases from

other circuits that have dealt with the issue of an attorney

involvement disclaimer. In Clomon v. Jackson, the “Second

Circuit held that the use of the attorney’s letterhead and his

signature on the collection letters was sufficient to give the

debtor the false impression that the letters were communications

from an attorney in violation of section 1692e(3).” Lesher, 650

F.3d at 999 (citing Clomon, 988 F.2d at 1320). The Clomon court

noted that the letters “were false and misleading because they

were not ‘from’ the attorney in any meaningful sense of the

word.” Id. (citing Clomon, 988 F.2d at 1320). There was very

little to no degree of attorney involvement in reviewing debtors’

files. Id. (citing Clomon, 988 F.2d at 1320). The Second

Circuit held that “some degree of attorney involvement is

required before a letter will be considered ‘from an attorney’

within the meaning of the FDCPA.” Id. (citing Miller v. Wolpoff

& Abramson, L.L.P., 321 F.3d 292, 301 (2d Cir. 2003)).

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The Lesher court also discussed Avila v. Rubin, 84 F.3d 222

(7th Cir. 1996), a Seventh Circuit case similar to Clomon. 

There, the Seventh Circuit noted that “an attorney sending a

collection letter must be directly . . . involved . . . in order

to comply with the strictures of the FDCPA” and proffer that the

letter is “from” an attorney. Lesher, 650 F.3d at 1000 (quoting

Avila, 84 F.3d at 229). The Seventh Circuit explained that:

An unsophisticated consumer, getting a letter from an

“attorney,” knows the price of poker has just gone up.

And that clearly is the reason why the dunning campaign

escalates from the collection agency, which might not

strike fear in the heart of the consumer, to the

attorney, who is better positioned to get the debtor’s

knees knocking.

Id. at 1000 (quoting Avila, 84 F.3d at 229). 

However, certain courts have recognized that a debt

collection letter that was not reviewed by a lawyer and sent on

law firm letterhead might not fall afoul of § 1692e(3), provided

that the letter contains a satisfactory disclaimer. The Second

Circuit, after Clomon, for example, “explain[ed] that an

attorney, acting as a debt collector, could avoid liability by

including a clear and prominent disclaimer in the collection

letter.” Lesher at 1000 (citing Greco v. Trauner, Cohen &

Thomas, LLP, 412 F.3d 360 (2d Cir. 2005)). The collection letter

sent by a law firm at issue in the Second Circuit case of Greco

included the disclaimer that, ‘[a]t this time, no attorney with

this firm has personally reviewed the particular circumstances of

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your account.’” Greco, 412 F.3d at 365. The Second Circuit in 3

Greco held that because of the inclusion of this disclaimer, “the

defendant law firm had not made a ‘false representation or

implication that any individual is an attorney or that any

communication is from an attorney with meaningful involvement as

an attorney in the debtor’s case.’” Lesher, 650 F.3d at 1001

(quoting Greco, 412 F.3d at 365). Therefore,

an attorney can, in fact, send a debt collection letter

without being meaningfully involved as an attorney within

the collection process, so long as that letter includes

disclaimers that should make clear even to the “least

sophisticated consumer” that the law firm or attorney

sending the letter is not, at the time of the letter’s

transmission, acting as an attorney.

Greco, 412 F.3d at 364.

Contrary to Greco, though, the Third Circuit in Lesher held

that “the [disclaimer] statement, [located on the back of the

letter], that ‘[a]t this point in time, no attorney with this

firm has personally reviewed the particular circumstances of your

account’ [did] little to clarify the [defendant law firm’s] role

in collecting the debt because it completely contradicts” the

body of the “message sent on the front of the collection 

letters--that the creditor retained a law firm to collect the

debt.” Lesher, 650 F.3d at 1003. The Lesher Court “recognize[d]

Compare the disputed language in Greco with the 3

disputed language at issue in this case: “At this time, no

attorney with this firm has personally reviewed the particular

circumstances of your account.” Def’s Brief in Supp. of Mot. to

Dismiss Ex. A.

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that the Second Circuit held in Greco that” similar language in a

“disclaimer sufficiently explained the limited role that

attorneys played in collecting the plaintiff’s debt.” Id. at

1003 n.11 (citing Greco, 412 F.3d at 366). Unlike the collection

letter in Greco however, where “the disclaimer was part of the

body of the text on the front page,” the Lesher collection

letters’ disclaimer “was printed on the back of the letters.” 

Id. at 1002, 1003 n.11 (citing Greco, 412 F.3d at 366). Thus,

the court was “not convinced that this disclaimer . . .

effectively mitigated the impression of attorney involvement.” 

Id. at 1003 n.11 (citing Greco, 412 F.3d at 366).

Here, the disclaimer mirrors the Greco and Lesher

disclaimers verbatim, and appears on the front of the letter, in

the body of the text, in the same font. See Def’s Brief in Supp.

of Mot. to Dismiss Ex. A. Plaintiff argues that Lesher deems

such a disclaimer as an automatic FDCPA violation. Pl’s Brief in

Opp. to Def’s Mot. 12. As Defendant correctly argues, however,

the Third Circuit distinguished the Lesher disclaimer from the

Greco disclaimer based on its placement. 

The Court recognizes that the Lesher court believed that the

collection letters conveyed the potentially confusing message

that “the creditor retained a law firm to collect the debt.” 

Lesher, 650 F.3d at 1003. But the Lesher court held that this

message potentially could have been (but in that case was not)

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clarified by the disclaimer, at least in part because the

disclaimer was printed on the back of the letter. By contrast,

in the instant case, by printing the disclaimer on the front, the

Court finds that Defendant Pressler sufficiently clarified any

potential confusion on this score noted by the Lesher court.

Furthermore, as Judge Walls in this District noted,

When an attorney sends a debt collection letter to the

least sophisticated debtor, the question in the debtor’s

mind is whether the attorney has in fact reviewed his

account or to what degree. To answer that question, the

letter should state simply that no attorney has reviewed

the debtor’s account or if an attorney has reviewed that

account, to what degree. In Greco, the defendants

communicated [just that] in simple and unequivocal terms

that “at this time, no attorney with this firm has

personally reviewed the particular circumstances of your

account.”

Smith v. Harrison, Civ. No. 07-4255, 2008 WL 2704825, at *3

(D.N.J. July 7, 2008) (quoting Greco, 412 F.3d at 365) (emphasis

added). The Smith court held that the defendant law firm’s

disclaimer--“YOU ARE HEREBY ADVISED THAT THIS COMMUNICATION IS

NOT INTENDED TO IMPLY THAT AN ATTORNEY HAS REVIEWED THE DETAILS

OF YOUR ACCOUNT”--was “written in legalese” and that it was

ambiguous such that “the least sophisticated debtor could believe

that an attorney has reviewed the debtor’s account.” Id. at *4. 

Thus, the court held that because the defendant in Smith had not

“communicated in simple and unequivocal terms,” as was done in

Greco, the question regarding the degree of attorney involvement

was insufficiently answered, and the disclaimer was not

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sufficient. Id.

Here, Defendant’s disclaimer--“[a]t this time, no attorney

with this firm has personally reviewed the particular

circumstances of your account”--is precisely the disclaimer that

the Smith court noted would have been sufficient to answer a

least sophisticated debtor’s question of “whether the attorney

has in fact reviewed his account and to what degree.” Id. 

Additionally, since Defendant’s disclaimer appears on the front

of the letter, in the body of the text and in the same font,

Defendant has not made a false representation or implication that

the letter is from an attorney with meaningful involvement as an

attorney in the debtor’s case. 

Thus, the Court finds that the least sophisticated debtor

would not believe that Defendant’s collection letter gave an

impression that it was a communication from an attorney in

violation of section 1692e(3). Therefore, the Court will grant

Defendant’s motion to dismiss with respect to Plaintiff’s section

1692e claims.

C. Rules of Professional Conduct

Finally, Plaintiff argues that Defendant’s collection letter

“could never properly be sent by an attorney abiding by New

Jersey’s [Rules of Professional Conduct]”; that the “practice of

sending letters while disclaiming any knowledge of the matter”

violates the Rules of Professional Conduct and subsequently

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violates section 1692e of the FDCPA. Pl’s Brief in Opp. to Defs’

Mot. 14-15. As Plaintiff admits though, the Smith court “flatly

refused to address the ethics-violation-as-proof-of-an-FDCPA

violation.” Pl’s Brief in Opp. to Defs’ Mot. 16 n.5. 

Specifically, the Smith court noted that the debtor in that case

“argue[d] that under general, ethical obligations for attorneys,

attorneys ‘cannot disclaim their obligations to adequately assess

facts and circumstances before acting.’” Smith, 2008 WL 2704825,

at *4 n.1. The Smith court explained that “[t]his argument is not

supported by case law” and thus was not further addressed by the

court. Id.

Furthermore, a court in this District has persuasively

addressed the issue of whether “the unauthorized practice of law”

and alleged violations of the Rules of Professional Conduct

“state a cause of action for use of unfair and unconscionable

means to collect debt,” in violation of the FDCPA. Cohen v.

Wolpoff & Abramson, L.L.P., Civ. No. 08-1084, 2008 WL 4513569, at

*6-8 (D.N.J. Oct. 2, 2008). In Cohen, the plaintiff argued that

the defendant attorneys violated New Jersey’s Rules of

Professional Conduct through the unauthorized practice of law. 

Cohen, 2008 WL 4513569, at *6. The plaintiff argued that such a

violation created a cause of action under section 1692e of the

FDCPA. Id. The Cohen court explained that the FDCPA “does not

additionally require that the attorney conform to a particular

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state’s rules of professional conduct.” Id. at *7. Responding

to the plaintiff’s argument, the court stated that “[t]he

regulation of the practice of law is a matter of concern to the

states which regulate it. Plaintiff here seeks to import this

matter of concern to the states--state-specific rules of attorney

discipline--into federal legislation.” Id. The court went on to

note that “the stated purpose of Congress in enacting the FDCPA .

. . [provides] nothing . . . that suggests that Congress included

within the scope of abusive practices” the unauthorized practice

of law. Id. The Cohen court also cited “District courts in

other jurisdictions [which] have concluded that unauthorized

practice of law claims are not cognizable under the FDCPA.” Id.

at *8 (citing Lavender v. Wolpoff & Abramson, L.L.P., Civ. No.

07-0015, 2007 WL 3244189 (W.D. Mo. Nov. 1, 2007) (claim for

unauthorized practice of law not cognizable under FDCPA);

Anderson v. Gamache & Myers, P.C., No. Civ. 4:07-336, 2007 WL

1577610 (E.D. Mo. May 31, 2007) (same); Reade-Alvarez v. Eltman,

Eltman & Cooper, PC, 369 F. Supp. 2d 353, 361 (E.D.N.Y. 2005)

(same); Bass v. Arrow Fin. Servs. L.L.C., Civ. No. 01-8595, 2002

WL 1559635 (N.D. Ill. July 15, 2002) (same)).

Moreover, in Baxt v. Liloia, 155 N.J. 190, 198-99 (1998),

the New Jersey Supreme Court clearly stated that a breach of the

Rules of Professional Conduct does not give rise to an

independent cause of action in general. The court explained that

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“[t]he disciplinary rules serve purposes that are substantially

different from those of an individual litigant in a civil

action.” Baxt, 155 N.J. at 202. “The Rules of Professional

Conduct are intended to regulate attorney conduct, not to create

civil liability.” Cohen, 2008 WL 4513569, at *8 (citing Baxt,

155 N.J. at 202). 

As the Cohen court held, “it would run counter to the

policies underlying the Rules of Professional Conduct” to 

recognize the causes of action that were asserted in Cohen and

which Plaintiff asserts here. Cohen, 2008 WL 4513569, at *8. 

Thus, the Court concludes that Plaintiff’s claims for

violations of the Rules of Professional Conduct do not state a

cause of action for use of unfair and unconscionable means to

collect debt or misrepresentations in violation of the FDCPA. 

Therefore, the Court will grant Defendant’s motion to dismiss

with respect to Plaintiff’s claim that through professional

ethics violations, Defendant violated the FDCPA.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendant’s

motion to dismiss Plaintiff’s claims against it. The

accompanying Order will be entered.

February 28, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief United States District Judge

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