18-3842-cv
Gissendanner v. Enhanced Recovery Company, LLC

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 4th day of November, two thousand nineteen.

PRESENT:          JOSÉ A. CABRANES,
                  REENA RAGGI,
                               Circuit Judges
                  EDWARD R. KORMAN,
                               District Judge*


ANDREW GISSENDANNER,

                           Plaintiff-Appellant,                   18-3842-cv

                           v.

ENHANCED RECOVERY COMPANY, LLC,

                           Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                               Glenn E. Pezzulo, Culler, Marks,
                                                       Tanenbaum & Pezzulo, LLP; Alexander J.
                                                       Douglas, Douglas Firm, P.C., Rochester,
                                                       NY.



    *
    Judge Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation.

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FOR DEFENDANT-APPELLEE:                                      Christopher J. Martin, Christopher A.
                                                             Priore, Wilson Elser Moskowitz Edelman
                                                             & Dicker LLP, Albany, NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (Michael A. Telesca, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-Appellant, Andrew Gissendanner (“Plaintiff”), appeals from a December 7, 2018
judgment of the District Court (1) granting the Fed. R. Civ. P. 12(c) cross-motion for judgment on
the pleadings of Defendant-Appellee, Enhanced Recovery Company, LLP (“Defendant”), in an
action alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the
“FDCPA”); and (2) denying as moot Plaintiff’s motion for class certification. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         “We review a judgment under Federal Rule of Civil Procedure 12(c) de novo, accepting the
complaint's factual allegations as true and drawing all reasonable inferences in the plaintiff's favor.”
Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). “The standard for addressing a Rule
12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss
for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). After
independently reviewing the record, and for the reasons stated below, we affirm the District Court’s
judgment.

                                                     I.

        Plaintiff primarily argues that the District Court erred in holding that Defendant had not
made an actionable false, deceptive or misleading representation under the FDCPA, 15 U.S.C. §
1692e. The argument is defeated by Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75 (2d Cir.
2018), which controls this appeal. Thus, we affirm the judgment of the District Court, albeit for
reasons not expressly stated by the District Court. See Latner v. Mount Sinai Health Sys., Inc, 879 F.3d
52, 54 (2d Cir. 2018), as amended (Jan. 9, 2018) (explaining that appeals court may affirm for any
reason supported by record).

         Section 1692e of the FDCPA provides that “[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. Whether a collection letter is “false, deceptive, or misleading” under the FDCPA is
determined from the perspective of the objective “least sophisticated consumer.” Clomon v.
Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993) (internal quotation marks omitted). Under this standard,
“collection notices can be deceptive if they are open to more than one reasonable interpretation, at

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least one of which is inaccurate.” Id. at 1319. However, “in crafting a norm that protects the naive
and the credulous the courts have carefully preserved the concept of reasonableness.” Id. Therefore,
FDCPA liability “does not extend to every bizarre or idiosyncratic interpretation of a collection
notice.” Id. (internal quotation marks omitted). In applying the least-sophisticated-consumer
standard, we do so mindful that “other courts have held that even the ‘least sophisticated consumer’
can be presumed to possess a rudimentary amount of information about the world and a willingness
to read a collection notice with some care.” Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).

         We have also recently held that § 1692e incorporates a materiality requirement. Cohen, 897
F.3d at 85–86. Accordingly, “mere technical falsehoods that mislead no one are immaterial and
consequently not actionable under § 1692e.” Id. at 86 (internal quotations omitted). In contrast,
“communications and practices that could mislead a putative-debtor as to the nature and legal status
of the underlying debt, or that could impede a consumer's ability to respond to or dispute collection,
violate the FDCPA.” Id. (quoting Gabriele v. Am. Home Mortg. Servicing, Inc., 503 F. App'x 89, 94 (2d
Cir. 2012)).

         Plaintiff argues that the Defendant’s collection notice violates the FDCPA because it
contained information that is “open to more than one reasonable interpretation, at least one of
which is inaccurate.” Clomon, 988 F.2d at 1318. Specifically, Plaintiff focuses on the following
language printed in the header of the relevant debt collection notice: “Interest Accrued: N/A” and
“Non-interest Charges & Fees: N/A.” App. 12. Plaintiff contends that the least sophisticated
consumer could reasonably interpret this information to mean either: (1) that the creditor removed
the interest and fees from the underlying debt, which—according to Plaintiff’s brief—is false; or (2)
that the creditor has not added any additional interest to the debt after “placing the account in
collections,” which—in the present case—is indisputably true. Plaintiff’s Brief at 10. For Plaintiff to
prevail, he must clear two hurdles. First, both proffered interpretations must be reasonable. See Avila
v. Riexinger & Assocs., LLC, 817 F.3d 72, 75–76 (2d Cir. 2016). Second, the deception arising from
such reasonable interpretations must be material. See Cohen, 897 F.3d at 85–86. Assuming, arguendo,
that the text at issue here is subject to multiple reasonable interpretations, we conclude that the
resulting arguable deception is immaterial and, thus, not actionable.

         The District Court relied on Taylor v. Financial Recovery Services., Inc., 886 F.3d 212 (2d Cir.
2018), which provides relevant precedent here. In Taylor, we held that a debt collection notice that
failed to mention interest was not misleading under Section 1692e where the interest was not
actually accruing, and the debt amount was clearly stated. Taylor, 886 F.3d at 213–215. In so holding,
we expressly considered the plaintiff’s argument that the debt collection notices were misleading
because the least sophisticated consumer could have interpreted the absence of any information
regarding interest in the notices to mean either that interest on the debts was or was not accruing. Id.
at 214. We recognized that plaintiffs were effectively arguing “that a debt collector commits a per se
violation of Section 1692e whenever it fails to disclose whether interest or fees are accruing on a


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debt.” Id. Taylor rejected that argument because the only harm arising from the consumer’s
reasonably mistaken belief that interest was accruing on a static debt was not sufficiently serious to
be actionable. Id.

         Plaintiff argues that Taylor is not controlling because Taylor involved (1) an issue of interest
on the current debt account, whereas the present allegation concerns bygone interest; and (2) a debt
collection notice that did not mention interests or fees, whereas the present case does so by virtue of
the “N/A” language cited above. These arguments are without merit. In light of Taylor and Cohen, we
conclude that where the debt is static, it is immaterial whether the “N/A” language in this debt
collection notice could be understood to mean that the underlying debt never accrued interest prior
to placement in collections or that any accrued interest was forgiven, or to mean that the debt is not
presently accruing interest in collections. Indeed, if the collection notice in Taylor—allegedly subject
to multiple interpretations as to whether the current debt was accruing interest—was not actionable
under Section 1692e, the information conveyed here, allegedly subject to multiple interpretations as
to whether the debt formerly accrued interest, is surely not actionable.

                                                     II.

         In light of the foregoing conclusion, the District Court correctly dismissed Plaintiff’s class
certification motion as moot.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                           FOR THE COURT:
                                                           Catherine O’Hagan Wolfe, Clerk




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