NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

THOMAS C. WILLIAMS, 

 Plaintiff,

v.

THE CBE GROUP, INC., 

 Defendant.

 

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CIVIL ACTION No. 11-3680(FSH)

OPINION & ORDER

Date: December 22, 2011

HOCHBERG, District Judge.

This matter comes before the Court upon a Motion for Judgment on the Pleadings 

pursuant to Fed. R. Civ. P. 12(c), filed by Defendant, The CBE Group, Inc. (“CBE”)1

it appearing that Plaintiff filed a Complaint against Defendant, alleging violations of the 

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.;

. The Court 

has considered the submissions of the parties pursuant to Fed. R. Civ. P. 78; and 

2

 1

 CBE is a debt collection agency hired to collect an alleged credit card debt from Plaintiff. 

Plaintiff brings claims against Defendant under 15 U.S.C. §1692e and §1692g(b), claiming that 

language in CBE’s collection letter was intended to impart a threat whereby a debtor must pay 

off a portion of his balance in order to prevent future collection letters and calls. The substance 

of Plaintiff’s Complaint concerns the following sentence from the collection letter: “To 

prevent further phone calls and receiving future letters in regards to this matter please bring 

your account current through one of the payment options below.”

and

2

 Plaintiff brings a claim primarily under §1692e with an alternative claim under §1692g. 

Section 1692e broadly provides “[a] debt collector may not use any false, deceptive, or 

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

1692e. The subsections of §1692e then provide a non-exhaustive list of practices that fall 

within the ban and it is further possible for practices that are not banned to still violate the 

broad scope of §1692e. See Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 997 

(3d Cir. 2011). Specifically, § 1692e(10) further prohibits “[t]he use of any false representation 

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it appearing that CBE now moves for Judgment on the Pleadings pursuant to Fed. R. Civ. 

P. 12(c);3

it appearing that CBE asserts that the Complaint should be dismissed because the initial 

notice to Plaintiff complies fully with the FDCPA as it “does not overshadow and is not 

inconsistent with the validation notice,” and the letter “is not false, deceptive or misleading;” and

and 

 

or deceptive means to collect or attempt to collect any debt or to obtain information concerning 

a consumer.” 15 U.S.C. § 1692e(10). Plaintiff claims that §1692e is violated as CBE’s 

collection letter was false and deceptive in that it intuited the only way to prevent future calls or 

letters was to pay the balance of the debt. 

Section 1692g regulates the information that debt collectors must provide to alleged debtors. 

15 U.S.C. § 1692g. Section 1692g requires debt collectors to provide a debtor with a written 

validation notice along with the collection letter, usually on the same page, that explains 

debtor’s rights. Plaintiff’s §1692g claim posits that the consumer’s rights, shown in the 

validation statement on the collection letter, is overshadowed by, and inconsistent with, the 

language in the collection letter.

3

 Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed - but early enough not to 

delay trial - a party may move for judgment on the pleadings.” Motions for Judgment on the 

Pleadings under Rule 12(c) are considered using the same standards as when considering 

Motions to Dismiss under Rule 12(b)(6). Shelly v. Johns-Manville Corp., 798 F.2d 93, 97 n.4 

(3d Cir. 1986); Rivera v. City of Camden Bd. of Educ., No. 08-4306, 2009 WL 2001177, at *2 

(D.N.J. July 10, 2009). To survive a Rule 12(b)(6) motion, and thus a Rule 12(c) motion, 

“[f]actual allegations must be enough to raise a right to relief above the speculative level on the 

assumption that all of the complaint’s allegations are true,” even if doubtful in fact. Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007); see also Phillips v. County of Allegheny, 

515 F.3d 224, 234 (3d Cir. 2008) (“stating . . . a claim requires a complaint with enough factual 

matter (taken as true) to suggest the required element. This does not impose a probability 

requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable 

expectation that discovery will reveal evidence of the necessary element.”) (internal quotations 

omitted). Further, “a district court must view the facts and inferences to be drawn from the 

pleadings in the light most favorable to the non-moving party.” Regalbuto v. City of 

Philadelphia, 937 F. Supp. 374, 376-77 (E.D. PA. 1995) aff'd, 91 F.3d 125 (3d Cir. 1996)

(citing Janney Montgomery Scott, Inc. v. Shephard Niles, Inc., 11 F.3d 399, 406 (3d Cir. 

1993)). Although a court accepts as true the allegations in the complaint and all reasonable 

inferences that can be drawn therefrom and views them in the light most favorable to the 

plaintiff, a court does not credit a complaint’s “bald assertions” or “legal conclusions,” Morse 

v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citing Rocks v. City of 

Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989)). 

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it appearing that with respect to Plaintiff’s claim pursuant to §1692e, a communication is 

misleading under the FDCPA if “it can be reasonably read to have two or more different 

meanings, one of which is inaccurate,” Rosenau v. Unifund Corp., 539 F.3d 218, 222 (3d Cir.

2008) (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 455 (3d Cir. 2006)); and

it appearing that, the legislature intended to “protect[ ] the gullible as well as the shrewd,” 

Brown, 464 F.3d at 453 (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)); and

it appearing that, courts therefore examine the contents of a debt collection 

communication “from the perspective of the least sophisticated debtor,” Rosenau, 539 F.3d at 

221 (quoting Brown, 464 F.3d at 454); and

it appearing that while the “least sophisticated debtor” standard protects naive consumers, 

it also “prevents liability for bizarre or idiosyncratic interpretations of collection notices,” Wilson 

v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000); and

the Court finding that according to a “least sophisticated debtor” there could be more than 

one meaning of CBE’s sentence in the collection letter which states that “[t]o prevent further 

phone calls and receiving future letters in regards to this matter please bring your account current 

through one of the payment options below”; and

the Court further finding that while viewing the facts in the light most favorable to the 

non-moving party, a “least sophisticated debtor” could interpret this language as meaning the 

only way to prevent future calls and letters or as one of multiple ways of preventing future 

collection efforts4

 

and therefore Plaintiff will be permitted to proceed with his §1692e claim; and

4

 CBE’s brief in support of the motion for judgment on the pleadings appears to concede this 

point: “CBE’s letter presents Plaintiff with two options: (1) pay the debt and stop further 

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the Court further finding that with respect to Plaintiff’s claim pursuant to §1692g, 5

IT IS on this 22nd day of December 2011, 

 

CBE’s validation notice may have indeed been overshadowed by the collection letter, and 

therefore Plaintiff will also be permitted to proceed with his claim under §1692g; 

ORDERED that Defendant’s Motion for Judgment on the Pleadings is DENIED.

s/ Faith S. Hochberg 

Hon. Faith S. Hochberg, U.S.D.J.

 

telephone calls and letters, or (2) notify CBE within thirty days after receiving the collection 

letter that he disputes the validity of the debt.”

5

 The FDCPA mandates that debt collectors give alleged debtors a validation notice in writing 

that explains the debtor’s rights under §1692g. Here, Plaintiff claims that the validation notice 

is overshadowed and inconsistent with the collection letter. When ascertaining the 

effectiveness of the validation notice under §1692g, the Court looks to the location, format, and 

physical structure of the notice in addition to its language. See, e.g., Wilson v. Quadramed, 225 

F.3d 350, (3d Cir. 2000); see also Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991) 

(“[N]otice must be in print sufficiently large to be read, and must be sufficiently prominent to 

be noticed.”). In the present matter, CBE’s validation notice may be overshadowed by the 

collection letter because while the validation notice permits Plaintiff 30 days to dispute the 

claim, the collection letter seems to require payment immediately.

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