         11-559-cv
         Sarno, v. Midland Credit Management, Inc., et al.

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 22nd day of September, two thousand and eleven.
 5
 6       PRESENT: GUIDO CALABRESI,
 7                RICHARD C. WESLEY,
 8                GERARD E. LYNCH,
 9                         Circuit Judges.
10
11
12
13       STEPHEN L. SARNO, INDIVIDUALLY AND ON BEHALF OF A CLASS,
14
15                                     Appellant,
16
17                      -v.-                                                11-559-cv
18
19       MIDLAND CREDIT MANAGEMENT, INC., MIDLAND FUNDING LLC,
20
21                                     Appellee.
22
23
24       FOR APPELLANT:                DANIEL EDELMAN (Cathleen Combs, on the
25                                     brief), Edelman, Combs, Latturner, &
26                                     Goodwin, LLC, Chicago, IL.
27
28       FOR APPELLEE:                 PETER T. SHAPIRO (Jeffry A. Miller, Jamie
29                                     R. Wozman, on the brief), Lewis Brisbois
30                                     Bisgaard & Smith LLP, New York, NY)
31
32            Appeal from the United States District Court for the
33       Southern District of New York (Pauley, J.)
1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the judgment of the United States District

3    Court for the Southern District of New York be AFFIRMED.

4        Appellant appeals from a judgment of the United States

5    District Court for the Southern District of New York

6    (Pauley, J.), dismissing Appellant’s complaint under Federal

7    Rule of Civil Procedure 12(b)(6) for failure to state a

8    claim upon which relief could be granted.        We assume the

9    parties’ familiarity with the underlying facts, the

10   procedural history, and the issues presented for review.

11       Section 1692g of the Fair Debt Collection Practices Act

12   ("FDCPA") requires a debt collector to provide debtors with

13   written notice of their validation rights.        15 U.S.C.

14   § 1692g.      A debt collection notice that overshadows or

15   contradicts the validation notice violates § 1692g of the

16   FDCPA.     Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d

17   Cir. 1998); Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir.

18   1993).     A debt collector may not use “false

19   representation[s] or deceptive means to collect or attempt

20   to collect any debt or to obtain information concerning a

21   customer.”     15 U.S.C. § 1692e(10).   The “test for

22   determining whether a collection letter violates [§ 1692g or


                                     2
1    § 1692e(10)] is an objective standard based on the ‘least

2    sophisticated consumer.’” Clomon, 988 F.2d at 1318; see also

3    Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996).

4          Appellant asserts that Midland’s collection letter

5    violated the FDCPA because it included a sentence (following

6    the statutorily required notice under § 1692g), which read:

7    “Please remember, even if you make a payment within 30 days

8    after receiving this notice, you still have the remainder of

9    the 30 days to exercise the rights described above.”

10         Even as read by the least sophisticated consumer, that

11   sentence unambiguously referenced only the rights described

12   in the statutorily required notice that immediately preceded

13   it.   Because the letter merely informed Sarno that partial

14   payment would not affect the rights provided for in § 1692g,

15   it did not overshadow or contradict the § 1692g notice and

16   was not false, misleading, or deceptive. Therefore, Sarno

17   failed to state a claim upon which relief could be granted

18   and his complaint was properly dismissed.

19         For the foregoing reasons, the judgment of the district

20   court is hereby AFFIRMED.
21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk
23
24




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