Mariusz G. JARZYNA, Plaintiff, v. HOME PROPERTIES, L.P. et al., Defendants, 114 F. Supp. 3d 243

MEMORANDUM EDUARDO C. ROBRENO, District Judge. Table of Contents I. BACKGROUND .........................'...............................248 II. PROCEDURAL HISTORY..............................................251 ■ III. STANDARD OF REVIEW ....:...........................................252 IV. DISCUSSION ...........................................■.............252 A. .COUNT I: FDCPA....................................................252 1. Claims Against Defendant Home...................................253 2.

Claims Against Defendant FCO............’.........-...............254 a. § 1692g(a): FCO’s dunning letters do not adequately provide the required information.....■.».............................255 i.

The AV2 and HD1AC letters.............................256 51 The HD1A letter.......................................256 b. § 1692g(b): FCO failed to verify the debt and improperly continued its collection attempts... -.........'..................262 e, §§ 1692e(ll) and 1692d(6): FCO failed to self-identify as a • debt collector over the telephone .;............................ 264 d. §§ 1692f(l), 1692e(2), and 1692e(10): FCO attempted to collect a debt that Plaintiff did not owe.................-.............266 B. COUNTII: FCEUA...........................................-.......269 1.

Claims Against Defendant Home.....................................269 a. No -notice fee provision in the lease agreement ....................270 b. Home sends accounting letters to prior addresses ................272 c. Home continually-changed the amount due.................-.....272 d. Plaintiffs alleged debt to Home is bogus and illegal... ■......■......273 2. Claims Against Defendant FCO..........'...........................274 C. COUNT III: UTPCPL.................................................274 1. Claims Against Defendant Home....................................275 2.

Claims Against Defendant FCO.. ■..................................275 D. COUNT IV: Landlord and Tenant Act.................................276 1. Home Improperly Withheld the Security Deposit.......................276 2. Home Did Not Send a Timely Accounting...........................277 E. COUNTV: CM Conspiracy.,.........................................278 F. Defendant Home’s Counterclaim.......................................279 G. Defendant Home’s Request for Sanctions...............................279 V. CONCLUSION.................:.......................................279 VI.

APPENDIX A: Sample Form AV2 Letters from Defendant FCO..............282 VII. APPENDIX B: Sample Form HD1AC Letters from Defendant FCO...........286 This case, despite the relative simplicity of its claims, has proceeded along an unusually circuitous and contentious path: through fifteen months of discovery battles under the supervision of a Special Master, several iterations of the Complaint, and protracted but unsuccessful settlement negotiations.

Now the parties have all filed dispositive motions and the Court, briefs in hand (totaling 320 pages at last count), is ready to bring the matter one step closer to a final disposition.

Plaintiff Mariusz Jarzyna (“Plaintiff’) brings this action on behalf of himself and others similarly situated against Defendant Home Properties L.P. (“Home”) and Defendant Fair Collections and Outsourcing, Inc. (“FCO”), alleging violations of the Fair Debt Collection Practices' Act (“FDCPA”), 15 U.S.C. § 1692 et seq., Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEÜA”), 73 P.S. § 2270.1 et seq., Pennsylvania’s Unfair Trade Practices and Consumer ‘ Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq., and Pennsylvania’s Landlord and Tenant Act, 68 P.S. § 250.101.

Plaintiff also brings a claim of civil conspiracy under Pennsylvania common law. Each party has moved for

summary judgment. For the reasons that follow, the Court Ml grant these motions in part and deny them in part. I. BACKGROUND In January 2008, Plaintiff entered into a residential lease agreement with Defendant Home, which operates and manages the Glen Brook Apartments in Glenolden, Pennsylvania (“Glen Brook”). Home’s Br. Ex. E, Pl. Dep. 11:22-12:22, Mar. 18, 2011 [hereinafter Pl. Dep.]; id. at 1. The lease term lasted from January 2008 to January 2009, and Plaintiff resided at Glen Brook during that time. PI. Dep. 12:18-19.

Pursuant to the agreement, Plaintiff paid a $500,00 security deposit, which Home placed into an escrow account. Id. at 22:7-15. On November 17,2008, in anticipation of the end of his lease, Plaintiff entered into a new lease agreement with Home, Home’s Br. Ex. D, at 2, with a term lasting from January 12, 2009, to August 11, 2009, id.; PI. Dep. 13:2-7. The $500.00 security deposit from the first lease carried over to the second lease. ' PI. Dep. 22:10-15; Home’s Br. Ex. D, at 2, 5. The second lease agreement contained the following provisions: [A.]2. Return of Security Deposit.

Your security deposit will be returned to you after your Lease has ended and if you have met the following conditions: a. You have vacated your Apartment; b. You have paid the rent and other charges due under the Lease; c. You have given us proper notice of your leaving; d. You have removed your personal property and have left the Apartment in good and clean order, except for ordinary wear and tear. If we retain some or all of your security deposit, we will notify you at the forwarding address you provide of the reasons we withheld part or all of your security deposit.

We will send you notice and/or return your security deposit within the time set forth in the State Law Provisions attached to this Lease. [B.I.] Late Fees. If you fail to pay the rent in full before the end of the 5th day of the month, you will immediately pay us, as additional rent, a late fee of 10% of the monthly rent. If you still fail to pay the rent in full before the end of the 15th day of the month, you will pay us, as additional . rent, an additional late fee of 5% of the monthly rent for a total late fee of 15% of the monthly rent. ■ [C.]3.

Notice to Vacate at End of Lease Term.- You must'give us 'at least sixty (60) days written notice of your intention to vacate the Apartment at the end of the term. If you fail to give this notice, you will be held liable for rent for the period for ■ which you failed to give us "notice. Please note that you are not permitted based on this

section to give ms notice that you will leave prior to the end date of this Lease (on page 2). 5. Failure to Vacate at End of Lease Term. In the event; you do not vacate the Apartment at the end of .the .term, we may use legal process to remove you. Or, if we accept rent for the period after the end of the Lease Term, then you shall be deemed a holdover Resident and your tenancy shall be month-to-month, with monthly rent at the current market rate for a month-to-month lease. We will provide you with at least 60 days notice of that rate.

Either you or we can terminate the month-to-month lease as of the last day of any calendar month by giving one calendar month’s written notice to the other party. Home’s Br. Ex. D, at 3-8. On August 11, 2009, Plaintiff did not vacate his apartment, and his lease converted to a month-to-month tenancy. PI. Dep. 23:10-14; Home’s Br. 5. On September 1, 2009, Plaintiff gave Home the required one month’s notice, stating that he planned to vacate on October 1, 2009. PI. Dep. 72:12-20; Home’s. Br. 7. The next day, Home offered Plaintiff a deal if he would consider renting another apartment at Glen Brook. Pl.

Dep. 77:77-8:5. In pursuing this, -opportunity, ■,Plaintiff rescinded'his September 1, 2009, notice of termination and Home removed him from the “move-out list.” Id. at 78:8-9; see also Home’s Br. Ex. J. Although Plaintiff and an intended roommate attempted to find a new apartment — with the roommate going so far as to sign a new lease — their efforts ultimately fell through. Pl. Dep. 78:879:2, 88:19-90:20; Pl.’s Resp. to Home ,7. Therefore, on October 7,2009, Plaintiff signed a third lease in order to secure his current apartment from December 12, 2009, to December 11, 2010. Home’s Br. Ex.

H, at 1-2. • On October 28, 2009, Plaintiff received a late notice under his door with a balance due of $1,415.30. Third Am. Class Action Compl. (“TAC”) Ex. 8, ECF No. 205-1; PL Dep. 85:1-12. Plaintiff' disputed this charge, and Home allegedly could not immediately explain it — although the onsite leasing office promised to “send it up to corporate.” Pl. Dep. 86:12-15. After this, Plaintiff resolved to end his tenancy at Glen Brook and consulted with his brother and attorney, Konrad Jarzyna, in order to do so. Id. at 86:15-22.

On October 28, 2009, Konrad Jarzyna sent Home a letter informing it that Plaintiff would be vacating on October 31, 2009, and declaring the October 7, 2009, lease agreement to be “null and void.” TAC Ex. 7; Home’s Br. 8. On October 31, 2009, Plaintiff vacated the apartment, 'having given Home two days’ notice. PL Dep. 72:23-73:8, 97:20— 98:1. On November 1, 2009, Plaintiff accessed his online balance with Home and learned that it had increased to $2,200. PL’s Resp. to Home 8 n. 39; Home’s Br. 10.

Based on a Statement of Deposit prepared by Home on November 16, 2009 — by which date the balance had increased to $2,397.92 — the amount included a thirty-day notice fee of $888.00, a rental charge of $379.20 as of September 30, 2009, a rental charge of $888.00 as of October 31, 2009, and miscellaneous other fees. PL’s Resp. to Home Ex. 1. The statement also indicated that Home had applied Plaintiff’s $500.00 security deposit to the amount due, which reduced the total due -to $1,897.92. Id. After moving out of Glen Brook, Plaintiff had no contact with anyone at Home regarding his balance due.

PL Dep. 92:16-94:2; Home’s Br. 10. In February 2010, Home retained Defendant FCO — a national debt collection company that regularly contracts with Home — to pursue recovery of Plaintiffs alleged debt. TAC ¶ 54; Home’s Br. 11; FCO’s Br. 22. Home and FCO’s relationship at that time was governed by a Collection Services Agreement (“CSA”), dated April 28, 2008. Home’s Br. Ex. K. As part of its collection effort, FCO made several attempts to contact Plaintiff.

For example, FCO sent Plaintiff its AV2 dunning letter on March 3, 2010; its HD1A dunning letter on March 22, 2010, and May 21, 2010; its HD1AC dunning letter on April 9, 2010; and its AVI dunning letter on May 21, 2010. FCO’s Br. 22-23; Pl.’s Mot. 2-4, However, FCO mailed these letters either to Plaintiffs old Glen Brook address or to Plaintiffs parents’ address in Reading, Pennsylvania, and Plaintiff never received them. FCO’s Br. 22-23. ' ■ On June 21, 2010, FCO mailed a dunning letter which Plaintiff did receive, and which the parties have produced. See TAC Ex. 11; see also PI. Dep.. 30:16-31:11; First Am.

Compl. ¶ 57, ECF No. 21. The June 21,2010, letter demanded payment of a “past due account” in the amount of $1,897.92. TAC Ex. 11. On July 17, 2010, Plaintiff sent a letter to FCO disputing the debt and requesting verification. Id. Ex. 12; FCO’s Br.. 21. FCO responded by furnishing Plaintiff with the Statement of Deposit mentioned above. TAC Ex. 13; FCO’s Br. 21. Plaintiff alleges that FCO also called him and his family members numerous times throughout the spring and summer of 2010, despite having received notice that Plaintiff was represented by his brother as counsel. TAC ¶¶ 64-65.

Plaintiff brings the following six claims: FDCPA violations, against Home and FCO (Count I); FCEUA violations, against Home and FCO (Count II); UTPCPL violations, against Home and FCO (Count III); Landlord and Tenant Act violations, against Home only (Count IV); civil conspiracy, against Home and FCO (Count V); and unjust enrichment, against Home and FCO (Count VI). II. PROCEDURAL HISTORY On August 18, 2010, Plaintiff filed his initial Complaint; ECF No. 1.

In light of myriad discovery disputes among the parties, the Court on August 31, 2011, appointed Stephanie Blair, Esquire, as Special Master in the case to .address all pretrial discovery matters. ECF No. 153. On November 21, 2012, Special Master Blair submitted her ' Final Report and Recommendation, ECF No. 190, which the Court adopted in full on April 4, 2013, over Plaintiffs objections, ECF No. 202. On April 8,2013, pursuant to the Court’s Order, Plaintiff filed a Third Amended Class Action. Complaint against Defendants. ECF No. 205.

Defendants filed motions to dismiss for failure to state a claim as to Plaintiffs claim for unjust enrichment (Count VI of the Third Amended Class Action Complaint). ECF Nos. 207-208. Following a hearing, the Court granted these motions. ECF No. 220. • On December 19, 2013, Plaintiff filed a motion for class certification. ECF No. 222. The Court thereafter set deadlines for

summary judgment motions and ordered that Defendants were to respond to Plaintiffs motion for class certification within twenty days of the disposition of all motions for

summary judgment. ECF No. 227. On December 30, 2013, Plaintiff filed a motion for

summary judgment. ECF No. 225. On January. 16, 2014, Defendant Home filed an Answer and Counterclaim against Plaintiff, seeking the balance of the alleged amount owed to Home by Plaintiff. ECF No. 231. On February 18, 2014, Home filed a motion for

summary judgment, ECF No. 234, and Defendant FCO filed a cross-motion for

summary judgment, ECF No. 233. All parties have filed their responses. On August 13, 2014, Plaintiff filed a supplemental brief related to additional discovery material that Home had produced. ECF No. 246. Pursuant to the Court’s order, Home filed a supplemental response on May 12, 2015.' ECF No. 250. • On March 10, 2014, the Court issued an order staying all further proceedings in this case, pending the outcome of settlement negotiations by the parties before Magistrate Judge Rueter. ECF No. 239. The parties participated in settlement conferences' on March 31, 2014, and August -11, 2014,- to no avail.

On February 12, 2015, the Clerk removed the case from suspense. The motions have been fully briefed -and are now ripe for- disposition. III. . SÍANDARD OF REVIEW ,

Summary judgment is appropriate if there is no genuine dispute as to any material, fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). “A motion for

summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is “material” if proof of its existence or nonexistence might affect, the -outcome of the litigation, and a dispute is “genuine” if “the evidence-is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury , could find for the nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir.2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

The guidelines governing

summary judgment are identical when addressing cross-motions for

summary judgment. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). When confronted with cross-motions for

summary judgment, “[t]he court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F.Supp.2d 612, 615 n. 1 (E.D.Pa.2003) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)) (internal quotation marks omitted). IV. DISCUSSION A.

COUNT I: FDCPA Congress’s purposes in enacting the FDCPA were “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Plaintiffs claim that Defendants violated numerous provisions of the FDCPA, as discussed below. 1. Claims Against Defendant Home'' In his

summary judgment-brief, Plaintiff makes no mention of Defendant Home in connection with the FDCPA clairii. However, the Third Amended ■ Class Action Complaint alleges the following: - . 9.

Defendant' Home is a “creditor” with respect to the alleged’ debt at issue .in this action and for others similarly situated as that term is defined by-15 U.S.C. § 1692a(6), and therefore also is a “debt collector” under 'the FDCPA with respect to ■ those ■ alleged debts because Home, “in the process of collecting [its] own debts, uses any name other than [its] own which would indicate that a third person- is collection [sic] or attempting to collect such . debts.” 15 U.S.C. § 1692a(6).' 10.

Home regularly and routinely uses Defendant [FCO] to collect Home’s debts using FCO’s name, including the alleged debt at issue in this case as well as similar debts of other class members. TAC ¶¶ 9-10 (first and second alterations in original). Thus, although Plaintiff does not allege that Home directly collected the debt, he nevertheless alleges that Home is subject to the FDCPA via the conduct of FCO, which did directly attempt to collect the debt. “The FDCPA’s provisions generally apply only to ‘debt collectors.’ Creditors — as opposed to ‘debt collectors’ — generally are not subject to the FDCPA.” Pollice v.

Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir.2000) (citation omitted).

For the purposes of this action, the FDCPA defines a “debt collector” as any person ... who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... [T]he term includes any creditor who, in the pirocess of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. . 15 U.S.C. § 1692a(6). “Creditor” is defined as “any person who offers- or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” § 1692a(4).

In the portion of the Third Amended Class Action Complaint quoted above, Plaintiff appears to make two separate arguments. First, he asserts that Home is a debt collector by nature of seeking to have its debts collected by FCO. But as Judge Jones recently and convincingly articulated in a similar case brought by Plaintiffs counsel here against Defendants Home and FCO, [t]his assertion is erroneous, as Plaintiff conflates the meaning of creditor and debt collector under the FDCPA.

The alleged debt was owed to Home ..., and had been owed prior to the debt going into default; accordingly, Home ... [was a] creditor[] for the purposes of the FDCPA. By attempting to collect [its] own debt, which Plaintiff acknowledges [it] did by retaining debt collector FCO, Home ... do[es] not fall under the purview of the FDCPA and cannot be held liable for' the claims as alleged. Brignola v. Home Props., L.P., No. 10-3884, 2013 WL 1795336, at *6 (E.D.Pa. Apr. 26, 2013) (Jones, J.).

Second, Plaintiff argues that Home, though a creditor, fits within the § 1692a(6) exception for creditors who collect their own debts using a name other than their own. In other words,’ Home’s attempt to collect its debt using FCÓ renders Home itself a debt collector. The Brignola court addressed an identical argument, finding that it distorts the FDCPA, which does not prohibit a creditor from indicating that a debt collector is attempting to collect a debt on behalf of the creditor.

Rather, the FDCPA forbids a creditor from attempting to collect its own debt by falsely representing that the debt is being collected by another entity. Plaintiff does not claim that Home ... attempted to collect [its] own debt after hiring FCO to collect ... on [its] behalf, and any indication by Home ... that FCO was collecting this debt does not transpose [it] into [a] debt eolleetor[ ]. Id. The Court finds this reasoning to be persuasive.' Home is a creditor under the FDCPA, not a debt collector, and thus is not subject to the provisions at issue in this case.

Perhaps anticipating this result, Plaintiff also argues that Home is vicariously, liable for . FCO’s alleged violations of the FDCPA. Pl.’s Resp. to Home 33. However, although the Third Circuit has held that “an entity which itself meets the definition of ‘debt collector’ may be held vicariously liable for unlawful collection activities carried out by another on its behalf,” Pollice, 225 F.3d at 404, the Court has already found that Home is a creditor and not a debt. collector.

Plaintiff having offered no authorities to the contrary, the Court finds that Home cannot be held vicariously liable under the FDCPA for FCO’s alleged conduct. The facts are undisputed that Home transferred the alleged debt to FCO and FCO proceeded to collect on it. As a matter of law, this Court finds Home to be a creditor for which no vicarious liability under the FDCPA can attach based on the actions of FCO as debt collector. Therefore, related to Count I of the, Third Amended Class Action. Complaint, Plaintiffs motion for

summary judgment will be denied as to Defendant Home, and Home’s motion for

summary judgment will be granted. ' 2. Claims Against Defendant FCO As presented in his motion for

summary judgment, Plaintiffs FDCPA claims against Defendant FCO may be grouped as follows:

(1) FCO’s' standard dunning letters do not adequately provide the required information, in violation of 15 U.S.C. § 1692g(a);

(2) FCO failed to verify the debt per Plaintiffs demand and improperly continued its attempts to collect on the debt, in violation of § 1692g(b);

(3) FCO’s employees did not identify themselves as-working for a debt collector when they made calls to Plaintiff, in violation of §§ 1692e(ll) and 1692d(6); and

(4) FCO illegally attempted to collect debt that Plaintiff did not owe, in violation of §§ 1692f(l), 1692e(2), and 1692e(10).

The Court will evaluate each of these claims below. a. § 1692g(a): FCO’s dunning letters do not adequately provide the. required information Under the FDCPA, a debt collector must include the following information in its initial communication to a debtor, or in a communication to be sent within five days after the initial communication: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consum•er, 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 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).

When a debt collector conveys this information, “more is required than the mere inclusion of the statutory debt validation notice in the debt collection letter — the required notice must also be conveyed effectively to the debtor.” Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir.2000). In determining whether a particular validation notice meets the statutory requirements, it must “be interpreted from the perspective of the least sophisticated debtor.” Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir.1991) (internal quotation marks omitted).

This is a relatively low standard, as the Third Circuit has observed: The least sophisticated debtor standard requires more than “simply examining whether particular language would deceive or mislead a reasonable debtor” because a communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated debtor. [Wilson], 225 F.3d at 354 (internal quotation marks and citation omitted).

This lower standard comports with a basic purpose of the FDCPA: as previously stated, to protect “all consumers, the gullible as well as the shrewd,” “the trusting as well as the suspicious,” from abusive debt collection practices. ■ Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir.2006). But the standard “does not go so far as to provide solace to the willfully blind or non-observant.” Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir.2008). Rather, it works to “prevent[ ] 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.” Brown, 464 F.3d at 454 (quoting Wilson, 225 F.3d at 354-55) (in-. temal quotation marks omitted). Specific to a § 1692g claim, a statutorily compliant validation notice will “be in print sufficiently large -to be read, and must be sufficiently prominent to be noticed. More importantly ...,. the notice must not be overshadowed or contradicted by accompanying messages from the debt collector.” Graziano, 950 F.2d at 111.

Finally, in this Circuit, “whether language in a collection letter contradicts or overshadows the validation notice is a question of law.” Wilson, 225 F.3d at 353 n. 2. Here, Plaintiff references at least three of FCO’s standard dunning letters — forms AV2, HDlA, and HDlAC — each of which is alleged either to have omitted the § 1692g validation notice or to have overshadowed such notice with other language. See Pl.’s Br. 20. i.

The AV2 and HDlAC letters FCO concedes that its standard AV2 and HDlAC letters (attached as Appendices to this memorandum) do not contain the mandatory FDCPA disclosures, but notes that “these letters are designed as follow up correspondence that is sent after the mailing of the initial letter that includes the § 1692g disclosures.” FCO’s Br. 29. The parties do not address whether- FCO also sent an initial letter (which Plaintiff did not receive) that included the required disclosures. Assuming that, for purposes of the motions for

summary judgment, the initial letter contained the required disclosures, it remains a question of fact as to whether the letter was ever sent or received. Accordingly, there remains-a genuine dispute of material fact'as to whether FCO violated the FDCPA when it sent the AV2 and HDlAC letters. Plaintiff's motion for

summary judgment on this claim will be denied, - and FCO’s cross-motion for

summary judgment will be denied as well. ii. The HDlA letter Following is the HDlA letter, dated June ,21,, 2010, that Plaintiff- received from FCO: TAC Ex. 11, HD1A Letter 1-2. Plaintiff complains that this letter is structured so that the payment demand overshadows the statutorily required validation notice, and thus the letter violates § 1692g.

Specifically, Plaintiff takes issue with the following: • “Payment demand — $1897,92” appears in bold text in a prominent, central position on the page; • A boldly bordered box appears at the top right, inviting the recipient to “Pay in full online anytime” at the website listed; • The first line of the letter’s main text announces that FCO’s. client (i.e., Home) “is demanding full payment of your past due account”; • Farther down the page, an FCO telephone number is provided, as is a statement indicating that checks and credit cards are accepted; • The validation notice itself is “[b]uried at the bottom of the letter, in patently non-descript font,” and is followed by a boldly lettered and capitalized notice that the reverse side has “important information regarding state and federal laws and your rights”; and • The reverse side does not contain adequate disclosures.

See PL’s Br. 25-27; TAC Ex. 11, HD1A letter 1-2. ■ In Graziano, the Third Circuit’s seminal case on the overshadowing of validation notices, a debt collector sent the plaintiff a collection' notice that, on the first page, “threatened legal action within ten days unless the debt whs resolved in that time”; at the bottom of the first page, noted, “See reverse side for information regarding your legal status!”; and, on the reverse side, printed the proper validation notice in a manner “sufficient to bring it to [the plaintiffs] attention.” 950 F.2d at 109.

The court found “a reasonable probability that the least sophisticated debtor, faced •with a demand for payment within ten days and a threat of immediate legal action if payment is not made in that time, would be induced to overlook his statutory right to dispute the debt within thirty , days.” Id. at 111. Because “[a] notice of rights, when presented in conjunction with such a contradictory demand, is not effectively communicated to the debtor,” the court held that the other messages overshadowed the required notice, and the collection letter violated § 1692g. Id.

In Wilson, the Third Circuit reached the opposite conclusion. There, the collection letter at issue contained three paragraphs, each “printed in the same font, size and color type-face.” 225 F.3d at 352. The first paragraph read: “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.” Id.

The second paragraph read: “To insure immediate credit to your. account, make your check or money order payable to ERL Be sure to include the top portion of this statement and place your account number on your remittance.” Id. The third paragraph provided the validation notice. Noting that “the debt collection letter here presents a close question,” id. at 353, the court .nevertheless held that it “did not violate

section 1692g of the Act for the reason that the first two, paragraphs of the collection letter neither overshadow nor contradict the validation notice,”, id. at 356. The court supported this conclusion by analyzing the three paragraphs in terms of form and substance: First of all, upon review of the physical characteristics and form of the letter, we have concluded that the first two paragraphs of the letter do not overshadow the validation notice. The validation notice was presented in the same font, size and color type-face as the first two paragraphs of the letter.

Moreover, the required notice was set forth on the front page of the letter immediately following the two paragraphs that Wilson contends overshadow and- contradict the validation notice. Accordingly, Wilson’s overshadowing claim must fail. Second, an actual or apparent contradiction between the first two paragraphs and the third one containing the validation notice does not exist here. Unlike the collection letter in Graziano, which demanded payment within ten days and threatened, immediate legal action if payment was not made in that time, Quadramed’s letter makes no such demand or threat.

Instead, Wilson is presented with two options: (1) an opportunity to pay the debt immediately and avoid further action, or (2) notify Quadramed within thirty days after receiving the collection letter that he disputes the validity of the debt. As written, the letter does not emphasize one option over, the other, or suggest that Wilson forego the second option in favor of immediate payment. Thus, we find the least sophisticated debtor would not be induced to overlook his statutory right to dispute the debt within thirty days. Id. (footnote omitted).

After closely examining the collection letter in the. instant case, the Court finds that it falls much closer to Wilson’s letter than to Graziano’s.

Looking at the letter’s formal elements, although “Payment demand — $1897.92” is bolded and certainly draws the eye, the validation notice is clearly printed on the front of the form, in the middle of the page, and in a font that appears as big as, if not slightly bigger than, the text in the body of the letter.' The direction to see the reverse side for important legal information is located below the validation notice and, although it is capitalized, it does not appear to be in appreciably larger font size than the notice.

Thus, although the payment demand is highlighted to a greater extent than in Wilson (arid is not incorporated into one of three similar paragraphs), the demand and the validation notice are clearly perceptible and in reasonable proximity on the front of the form. This retains the effect that the letter’s recipient has a choice, as in Wilson, between paying the debt and disputing its validity.

Moreover, neither the demand nor the letter’s main text contains the kind of “screaming” headlines, blunt imperatives, and copious use of capital letters and exclamation points used by letters other courts have found to be violative of § 1692g. See, e.g., Miller v. Payco-Gen. Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir.1991) (“The front of the ... form demands ‘IMMEDIATE FULL PAYMENT’ and commands the consumer to ‘PHONE U.S. TODAY,’ emphasized by the word ‘NOW’ emblazoned in white letters nearly two inches tall against a red background.”).

For these reasons, the Court finds that the letter’s form does not cause other messages to overshadow the validation notice. Looking to the letter’s substance, Plaintiff argues that the payment demand “insisted on immediate payment of the bogus debt and did not even afford the alleged debtor the 10 days in Graziano,” Pl.’s Br. 28 n. 34. Plaintiff also considers the letter’s offer to “Pay in full online anytime” and its notice of acceptance of payment by check and credit card to constitute inappropriately “immediate and urgent” demands. Id. at 27.

However, unlike in Graziano, nowhere does FCO’s letter require action by a certain time. In fact, the payment demand does not use the word “immediately” at all, as the Wilson letter did. Any immediacy in the payment demand is perhaps implicit in its central location, bolded text, and larger size. However, these features also serve the purpose of alerting the recipient to the fact and amount of the debt.

The Court agrees with its counterpart in the Northern District of Illinois that, at most, “[FCO’s] payment ‘demand’ and request for payment online ‘anytime’ is in the nature' of puffing, which is rhetoric designed to create a mopd rather than communicate information . or misinformation, and does not, standing, alone, run afoul of § 1692g(b).” Velazquez v. Fair Collections & Outsourcing, Inc., No. 12-4209, 2013 WL 4659564, at *5 (N.D.Ill. Aug. 30, 2013).

But even assuming that the payment demand and .similar terms communicated a.sense of immediacy, this would not change the Court’s analysis, as a collection letter’s request “for [the debt- or’s] immediate attention .... has never been found to violate

section 1692g.” Vasquez v. Gertler & Gertler, Ltd., 987 F.Supp. 652, 657 (N.D.Ill.1997) (cited favorably by Wilson, 225 F.3d at 360).

For these reasons, the Court finds that, the payment demand and similar terms here do not contradict the validation notice by demanding action sooner than the statutorily required thirty-day period. .Instead, unlike the letter in Graziano but like that in Wilson, the letter here preserves the impression — discernable by even the least sophisticated debtor, who the Court must assume will read the entire letter with care, Wilson, 225 F.3d at 354-55-r-that it presents a choice between paying the debt and pursuing validation. The letter’s other features do not change this result.

First, Plaintiff surmises a “sinister” purpose in the letter’s several mentions of FCO’s telephone number, which is that it obscures the fact that, under § 1692g, a debtor must dispute the debt in writing in order to have it validated. See Pl.’s Br. 2930. In Caprio v. Healthcare Revenue Recovery Group, LLC, the Third Circuit considered this question in the context of a collection letter that included the following notice: “If we can answer any questions, or if you feel you do not owe this amount, please call us toll free at 800-981-9115 or write us at the above address.” 709 F.3d 142, 150 (3d Cir.2013).

The court found that this language overshadowed the validation notice because “this ‘please call’ language basically instructed [the] debtor to call or write in order to dispute the debt itself’ — an action insufficient to dispute the debt under § 1692g. See also, e.g., Hishmeh v. Cabot Collection Sys., L.L.C., No. 13-4795, 2014 WL 460768, at *1 (E.D.Pa. Feb. 5, 2014) (finding a collection letter violated-§ 1692g where it directed the debtor to “advise” or “contact” the debt collector in order to dispute the debt,, but did not specifically instruct the debtor to do so in writing).

Here, by contrast, there is no indication in the collection letter that the debtor must call FCO in order to dispute the debt. After ¿nnouneing the payment demand, the letter merely states, “Our professional debt collectors are here to help you resolve this matter,” and follows this with the telephone number. TAC Ex. 11. Underneath the telephone number is the phrase “Check by phone, Visa, and Master Card accepted.” Id. A space of several lines then separates this portion of the letter from the validation notice.

The letter’s reverse side reads, “The collection agent assigned to your account may change from time to time. If you experience any difficulty finding the appropriate collection agent handling your account, contact the collection manager at 877-324-7959.” Id. This, layout would not confuse the least sophisticated.debtor because the telephone number is provided to the debt- or as an alternative method by which he could pay off the debt, not as a method by which he should dispute the debt. The telephone number therefore does not overshadow the validation notice.

Second, and finally, neither the notice to see the reverse side for important legal information nor the reverse side itself has any bearing on this analysis. Although Plaintiff is correct that the reverse side does not contain adequate § 1692g disclosures, see PL’s Resp. to FCO 55, this is irrelevant since such disclosures were adequately presented on the letter’s face. Furthermore, the notice to see the reverse side, appearing below the validation notice and apparently referring to additional state and federal laws, does not overshadow or contradict the validation notice.

The remaining disclosures on the reverse side relate to' state law and are not applicable here. For all of the above reasons, and considering the perspective of the least sophisticated debtor, the HD1A collection letter as a whole does not overshadow or contradict the validation notice under § 1692g. Plaintiffs motion for

summary judgment on this claim will, be denied and FCO’s cross-mption for

summary judgment will be granted. b. § 1692g(b): FCO failed to verify the debt and improperly continued its collection attempts Plaintiff claims that, upon sending a letter to FCO disputing the alleged debt, FCO verified the debt by sending him “just another copy of the same bill or invoice sent by Home to FCO for collection in the first place.” PL’s Br. 31. As noted above, FCO sent Plaintiff the Statement of Deposit, listing the individual charges that comprised the alleged debt. See TAC Ex. 13.

This was insufficient, according to Plaintiff, because it did not provide “some proof of the grounds or basis for the alleged debt in addition to any itemization of the amounts claimed.” PL’s Br. 31. Instead, Plaintiff argues that FCO should have at least sent the Resident Ledger Detail Report, which “list[s] all financial transactions for each tenant.” Id. at 32-33.

In addition, Plaintiff bélieves FCO should have attempted “to verify the validity ‘ of the debt for plaintiff ... by ... inquiring of Home whether the debt was invalid and uncollectible under state' landlord-tenant law.” Id. at 33.' By continuing to pursue the debt after improperly verifying it, Plaintiff contends that FCO violated § 1692g(b).

Section 1692g(

b) provides,, in relevant part: If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (

a) of this

section that the debt, or- any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the -debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt col-, lector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. 15 U.S.C. § 1692g(b).

Aside from its opinion in Graziano, the Third Circuit has not had occasion to articulate definitively what “verification” might entail. See Sasscer v. Donnelly, No. 10-464, 2011 WL 1522320, at *4 (M.D.Pa. Apr. 20, 2011) (noting Gra-ziano to be “the one reported Third Circuit case that addresses the adequacy of the verification supplied by a debt collector”). In Graziano, the defendant debt collector verified the alleged debt by furnishing “a bill and computer printout for [the] debt.” 950 F.2d at 109.

The Court affirmed the district court’s conclusion that these materials were sufficient: “The computer printouts provided to Graziano were sufficient to inform him of the amounts of his debts, the services provided, and the dates on which the debts were incurred.” Id. at 113. Here, FCO’s provision of the Statement of Deposit was sufficient verifi- , cation of the alleged debt. The collection letter that Plaintiff received included only the amount of the payment demand. The Statement of Deposit itemized the charges that made up the total payment demand.

This document sufficiently informed Plaintiff of the amount of the debt, the “services provided” (here, charges included), and the dates to which these charges related. See. id. Although Plaintiff, complains in retrospect that FCO should have sent th,e Resident Ledger Detail Report as well, as the Court suggests fin the discussion of Plaintiffs FCEUA claims below, the Statement of Deposit' is consistent with the Resident Ledger Detail Report.

The fact that this latter document provides a full history of Plaintiffs transaction's does not change the Court’s conclusion that the Statement of Deposit — which fully supports the amount of alleged debt — is sufficient verification. Moreover, Plaintiffs suggestion that FCO was required to verify'the alleged debt with Home is ill-founded. In support of this argument, Plaintiff relies on Casterline v. Credit Protective Services of I.C. Systems, Inc., No. 89-3951, 1991 U.S. Dist. LEXIS 21728 (D.N.J. June 26, 1991).

In that case, the plaintiff complained that the defendant debt collector failed to properly verify a late fee for a videotape that had not been returned. Id. at *4. The court agreed, finding that the defendant should have provided plaintiff with an “agreement to pay a late fee for a non-returned videotape.” Id. at *5. The court noted that “[without verification which includes at least a colorable claim of entitlement to the debt, the provisions of the FDCPA ... are less effective.” Id.

The problem with Plaintiffs narrow focus on Casterline’s “colorable claim of entitlement” language is that it seems to impose, a duty on debt collectors over and above that imposed by Graziano. Plaintiff misinterprets § 1692g(

b) to require the debt collector to perform its own verification against the creditor’s files. However, while courts interpreting this

section have required that a debt collector do more than “merely repeat its- assertion that a debt is due,” Norton v. Wilshire Credit Carp., No. 95-3223, 1997 U.S. Dist. LEXIS 23360, at *22 (D.N.J. July 14, 1997), they have not read into it an affirmative obligation on the debt collector’s-part to investigate the debt’s validity. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999) (agreeing with the district court that debt collectors need “not vouch for the validity of the underlying debt” (internal quotation marks omitted)).

The debt collector is not charged with auditing the creditor’s records or opining on the debt’s validity. In other words, the debt collector is not the judge of the merits of the creditor’s claim against the debtor. Rather, the debt - collector must merely forward supporting information along to the debtor, so that the debtor can better understand the alleged debt’s origin and perhaps dispute it further, if warranted. At most, the statutory language would have the debt collector “obtain[] verification” from .the creditor. See § 1692g(b).

But even under such a standard, FCO here reasonably complied with the statute. FCO forwarded Plaintiff a more detailed statement explaining the charges underlying the alleged payment demand. It had no reason to believe that more was needed. In sum, the Third Circuit has only held that verification entails informing the debt- or of the amount of the debt, the services provided, and the dates on which the debts were incurred. See Graziano, 950 F.2d at 113. FCO’s provision of the Statement of Deposit fulfilled these criteria and to the extent that Casterline requires more than Graziano, the Court does not follow it.

Plaintiff complains that FCO sent him “just another copy of the same bill or invoice sent by Home to FCO for collection in the first place,” PL’s Br. 31, but this is exactly what FCO was supposed to .do. Accordingly, the Court finds that FCO did not violate § 1692g(

b) by continuing to collect on the debt after providing verification, and Plaintiffs claim under this

section fails. Plaintiffs motion for

summary judgment on this claim will be denied' and FCO’s cross-motion for

summary judgment will be granted. c. §§ 1692e(ll) and 1692d(6): FCO failed to self-identify as a debt collector over the telephone Plaintiff asserts that FCO violated sections 1692e(ll) and 1692d(6) when its employees left voice messages on his cell phone but did not disclose that the caller was seeking to collect a debt. PL’s Br.

Section 1692e(ll) provides that the following violates the FDCPA: The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose,, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in. connection with a legal action.

Section 1692d(6) prohibits, “[ejxcept as provided in

section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.”

Section 1692b prevents debt collectors from disclosing to third parties the nature of the communication or that the debtor owes any debt. Finally, § 1692a(2) defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Here, the parties do not dispute that FCO made several telephone calls to Plaintiffs cell phone and left corresponding voice messages.

Indeed, FCO’s president, Michael Sobota, submitted an affidavit which provides details on at least eleven voice messages that FCO left on Plaintiffs cell phone from March 16, 2010, to July 2, 2010, including transcripts of the messages themselves. See Pl.’s Mot. Ex. 25, Sobota Affidavit Ex. 1, at 1-3, Apr. 7, 2011 [hereinafter Sobota Aff. I]. In none' of these messages does the FCO caller identify the nature of the call, with the exception of the first message on March 16, in which the caller says he is from “FCO” but does not further explain what that means. See id.

Likewise, the parties do not dispute that the first — and seemingly only— time Plaintiff actually accessed a voice message-from-FCO was on July 28, although the contents of that message are not in the record. See PI. Dep. 45:6-46:7; Sobota Aff. I Ex. 1, at 1-3; FCO’s Br. 37. ' Neither do the parties ■ dispute that the voice messages were communications that in theory violated § 1692e(ll) by failing to include the required disclosures or violated § 1692d(6) by “failing to meaningfully disclose the caller’s identity. See, e.g., Everage v. Nat’l Recovery Agency, No. 142463, 2015 WL 1071757, at *4 (E.D.Pa.

Mar. 11, 2015) (noting that “meaningful disclosure” “has- been held to require the debt collector ‘to disclose the caller’s name, the debt collection company’s name, and the nature of the debt collector’s business’ ” (quoting Gryzbowski v. I.C. Sys., . Inc., 691 F.Supp.2d 618, 625 (M.D.Pa.2010))); see also, e.g., Inman v. NCO Fin. Sys., Inc., No. 08-5866, 2009 WL 3415281, at *3-4 (E.D.Pa. Oct. 21, 2009) (holding that voice messages requesting, a return call but not identifying the caller or the purpose of the call -are “communications” under the FDCPA); Foti v. NCO Fin.

Sys., Inc., 424 F.Supp.2d 643, 657 (S.D.N.Y.2006) (holding similarly and. noting that..“the FDCPA should be interpreted to .coyer communications that convey, .directly or indirectly, any information relating to .a debt, and not just when the debt collector discloses specific information about the particular debt being collected”). On this claim, then, the parties’ only dispute is a- legal one: whether a voice message that a .debtor never listens to can still violate the FDCPA. No direct authority considering this question appears to exist.

However, the FDCPA is a remedial, strict liability statute that is focused on the conduct of the debt collector rather than the injuries sustained by the debtor. See Allen ex rel. Martin v. La-Salle Bank, N.A., 629 F.3d 364, 368 & n. 7 (3d Cir.2011). Therefore, when a debt collector places a phone call and leaves a message that does not include the required disclosures, the debt collector has “communicated” with the debtor and thus the violation of the FDCPA is complete.

The-cases that FCO cites to the contrary are distinguishable: (1) a debt collector placed a telephone call to-debtor but hung-up without leaving a message, see Zortman v. J.C. Christensen & Assocs., Inc., 870 F.Supp.2d 694, 705-08 (D.Minn. 2012) (granting debt collector’s motion for

summary judgment); Wilfong v. Persolve, LLC, No. 10-3083, 2011 WL 2678925, at *4 (D.Or. June 2, 2011) (same); and (2) a debt collector placed several unanswered calls to a wrong number, see Worsham v. Account Receivables Mgmt., No. 10-3051, 2011 WL 5873107, at *3-4 (D.Md. Nov. 22, 2011) (holding that unanswered calls are not “communications” under the FDCPA and granting debt collector’s motion for

summary judgment), aff'd, 497 Fed.Appx. 274 (4th Cir.2012). In each of these cases, the plaintiffs had no access to the attempted communications and could thus never have had anything “conveyed” to them, as required by the FDCPA’s definition of “communication.” See § 1692a(2). Here, by contrast, messages were left on Plaintiffs cell phone, which he could have accessed at any time. It is clear that, by leaving a message on Plaintiffs voicemail, FCO “conveyed information” indirectly to Plaintiff and thus implicated FDCPA liability.

For these reasons, the Court finds that FCO violated sections 1692e(ll) and 1692d(6) when its employees left voice messages on Plaintiffs cell phone but did not properly identify who was calling. On this' claim, Plaintiffs motion for

summary judgment will be granted and FCO’s cross-motion for

summary judgment will be denied. d. §§ 1692f(l), 1692e(2), and 1692e(10): ■ FCO attempted to collect a debt that Plaintiff did not owe In his motion for

summary judgment, Plaintiff claims that FCO “attempt[ed] to collect monies neither lawfully owed nor collectable.” Pi’s Br. 34. Although he does not further elaborate the claim, his response to FCO’s cross-motion for

summary judgment suggests that the claim is based on FCO’s attempt to collect the thirty-day notice fee that Defendant Home assessed.

Section 1692f(

l) of the FDCPA prohibits “[t]he collection of any. amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” In the discussion below covering Plaintiffs FCEUA claims, the Court finds that Defendant Home assessed a thirty-day notice fee which was not supported by Plaintiffs lease agreement.

FCO’s attempt to collect on this fee, which accounted for $888.00 of the $1,897.92 total, see TAC Ex. 13, was neither “expressly authorized by the agreement creating the debt” nor permitted by any state- law to which the parties cite, appears to have violated § 1692f(l)..

In response, FCO puts forward the bona fide error defense, which has been codified by the FDCPA: A debt collector may not be held liable in any action brought under this sub-chapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error. 15 U.S.C. § 1692k(c).

The Third Circuit has held that, in order to avail itself of the bona fide error defense, a debt collector must establish: “(1) the alleged violation was unintentional, (2) the alleged violation resulted from a bona fide error, and (3) the bona fide error occurred despite procedures designed to avoid, such errors.” Beck v. Maximus, Inc., 457 F.3d 291, 297-98 (3d Cir.2006). The particular error here — attempting to collect an amount that is not supported by Plaintiffs lease agreement — may be characterized as a mistake of law, and contract law in -particular.

The Supreme Court has ruled that the bona fide error defense “does not apply to a violation of the FDCPA resulting from a debt collector’s incorrect

interpretation. of the requirements of ■ that ■ statute. ” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 604-05, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010) (emphasis added). However, the Supreme Court did not reach the question of whether mistakes of state or- contract law are similarly outside the scope of the bona fide error defense. Id. at 580 n. 4, 130 S.Ct. 1605. The Court sees no reason why such mistakes should not be covered by the defense. See Jenkins v.

Heintz, 124 F.3d 824, 833 (7th Cir.1997) (finding that the bona fide error defense covers the mistaken collection of legally invalid debts because to find otherwise would “limit a debt collector to only collecting legally valid claims,” thereby causing the bona fide error defense to “be. read out of the statute with respect to the violations of 15 U.S.C. §§ 1692e and 1692f"). With respect to the elements of the bona fide error defense, the Court’s analysis can begin' and end with the third element: that FCO. maintained procedures designed to avoid the particular error here.

FCO has failed to establish by a preponderance of the evidence that such procedures were in place. See § 1692k(c). FCO claims that it “reasonably relied on Home’s data” upon referral of Plaintiffs debt, FCO’s Br. ' 4Í, ■ and that ' it “maint[ained] ... procedures reasonably adapted to avoid errors,” id. at 42-43. Upon further investigation, these “procedures” are based on two

summary statements: (1) having handled Home’s account since FCO’s inception, FCO ■ has found Home’s' records to be reliable; and

(2) FCO requires a Statement of Deposit for each debtor-tenant and will only conduct a deeper investigation if the tenant specifically disputes a charge. Id. at 23 (citing id. Ex. 2, Sobota Affidavit ¶¶ 6-10, Feb. 13,." 2014 [hereinafter Sobota Aff. II]). While the'FDCPA does not require debt collectors to-perform an independent investigation of the debts referred to them, see, e.g., Jenkins, 124 F.3d at 833-34, it does require, debt collectors to implement procedures that reasonably avoid errors, see § 1692k(c). Neither of the- procedures FCO offers is designed to avoid the specific error in this case.

In fact, FCO has not offered any evidence of a tangible company policy or practice that-would even minimally ensure that the debts it receives are traceable to debtors’ agreements. See, e.g., Walter v. Palisades Collection, LLC, No. 06-378, 2011 WL 1666869, at *7 (E.D.Pa. May 2, 2011) (Robreno, J.) (rejecting a bona fide error defense where “[i]t was ... not typical procedure for [the debt collector] to have th[e] information”, necessary to prevent the error).

Moreover, in each of the cases FCO cites in support of its position, the debt collector had offered evidence of procedures much more robust than those FCO offers here. On the evidence here, no reasonable jury could find that FCO is entitled to the bona fide error defense. Accordingly, on this claim, Plaintiffs motion for

summary judgment will be granted and FCO’s cross-motion for

summary judgment will be denied. In sum, on Count I of the Third Amended Class Action Complaint, and as to Defendant FCO, Plaintiffs motion for

summary judgment will be denied and F.CO’s cross-motion for

summary judgment will be denied with respect to the claim that FCO’s AV2 and HD1AC letters lacked the required notice, in violation of 15 U.S.C. § 1692g(a). Plaintiffs motion for

summary judgment will be granted and‘FCO’s cross-motion for

summary judgment will be denied with respect to the following claims: (1) failing to identify as a debt collector when leaving voice messages on Plaintiffs cell phone, in violation of §§ 1692e(ll). and 1692d(6); and (2) attempting to collect a debt that Plaintiff did not owe, in violation of §§ 1692f(l), 1692e(2), and 1692e(10). Plaintiffs motion for

summary judgment will be denied and FCO’s cross-motion for

summary judgment will be granted with respect to the following claims: (1) lacking the required notice on the HD1A letter, in violation of § 1692g(a); (2) failing to properly verify the disputed debt, in violation of § 1692g(b); and (3). all other claims Plaintiff may have under the FDCPA. Therefore, the only remaining claim against FCO under Count I is the following: the AV2 and HD1AC letters lacked the required notice, in violation" of § 1692g(a). B.

COUNT II: FCEUA The FCEUA prohibits, among other things, “unfair or deceptive acts or practices with regard to the collection of debts,” 73 P.S. § 2270.2, and applies to both debt collectors and creditors, see § 2270.4. A debt collector’s violation of the FDCPA is a per se violation of the FCEUA. See § 2270.4(a). A creditor may only be liable under the FCEUA if it engages in various activities that generally mirror those proscribed by the FDCPA. See § 2270.4(b). 1.

Claims Against Defendant Home The Court has already held above that Defendant Home is not a “debt collector” under the FDCPA and cannot be liable as such. For this'reason, Home cannot be per se liable under the FCEUA. However, Plaintiff also alleged that Home’s “conduct ... constitutes separate and independent substantive violations of the FCEUA.” TAC ¶ 93. The Court therefore must consider whether Home’s actions as a creditor implicate the FCEUA. Plaintiff does not specify which of Home’s alleged. actions violated the FCEUA, but assumes that his presentation of the allegations establishes Home’s FCEUA liability.

See, e.g., Pl.’s Resp. to Home 35 (noting that “plaintiff Jarzyna is entitled to

summary judgment on his claims ... directly against Home under the FCEUA”). Separately, Plaintiff indicates that “Home is also independently liable, . at a minimum, . under

section (b)(5)(ii) ... and also under

section (b)(6)(i)” of the FCEUA. PL’s Suppl. 9. The sections Plaintiff refers to provide for the following:

(5) A creditor may not use any false, deceptive or misleading representation of means in connection with the collection of any debt. Without limiting the general application of the foregoing^ the following conduct is a violation "of this paragraph: (ii) The false representation of the character, amount or legal status of. any debt. (6), A creditor may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this, paragraph: (

i) The collection of any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless Such amount is expressly authorized by the agreement creating the debt or permitted by law. 73 P.S. § 2270.4(b). Upon review of Plaintiffs briefing, the Court-finds only four allegations as to Home that implicate concerns of “any false, deceptive or misleading -representation” or “unfair or unconscionable means,” and which therefore may plausibly implicate the FCEUA. The Court considers each in turn. a.

No notice fee provision in-the lease agreement Plaintiff claims the lease agreement made no mention of a fee for-failing to give proper notice. See PL’s Resp. to Home 23 (“Home’s standard form lease does not mention a word about any ‘notice’ fee or any penalty at all — ”). This is incorrect. The second lease agreement that Plaintiff signed on November 17, 2008, has a “Notice to Vacate at End of Lease Term”

section that reads, in relevant part: “You must give us at least sixty (60) days written notice of your intention to vacate the Apartment at the end of the term. If you fail to give this notice, you will be held liable for rent for the period for which you failed to give us notice.” Home’s Br. Ex. D, at 7. The lease agreement therefore clearly sets out a sixty-day notice fee, equivalent to one month’s rent, for a tenant’s failure to provide timely notice that he will be vacating at the end of his agreed-upon lease term. Here, the situation is slightly different, in that Plaintiff was a holdover tenant at the time Home assessed the notice fee. In a

section entitled “Failure to Vacate at End of Lease Term,” Plaintiffs November 17, 2008, lease agreement reads: “[I]f we accept rent for the period after the end of the Lease Term, then you shall be deemed a holdover Resident and your tenancy shall be month-to-month____ Either you or we can terminate the month-to-month lease as of the last day of any calendar month by giving one calendar month’s written notice to the other party.” Id. at 8. This language does not explicitly assign a thirty-day notice fee fon failure to give timely notice that the tenant will be ending his month-to-month tenancy.

The question is therefore whether Home’s assessment of such a thirty-day notice fee is based upon a proper

interpretation of the lease’s language. Under Pennsylvania law, “[t]he task of interpreting [a] contract is generally performed by a court rather than by a jury.” Gene & Harvey Builders, Inc. v. Pa. Mfrs. Ass’n Ins. Co., 512 Pa. 420, 517 A.2d 910, 913 (1986). The Third Circuit has summarized Pennsylvania law on contract

interpretation: Pennsylvania contract law begins with the “firmly settled” point that “the intent of the parties to a written contract is contained in the writing itself.” Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d 638, 642 (1993) (citing Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982)). “ Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence,’ ” instead, the meaning of a clear and unequivocal written contract “ ‘must be determined by its contents alone.’” Steuart, 444 A.2d at 661 (quoting East Crossroads Ctr., Inc. v.

Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865, 866 (1965)). “[W]here language is clear and unambiguous, the focus of

interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended.” Id. “Clear contractual terms that are capable of one reasonable

interpretation must be given effect without reference to matters outside the contract.” Krizovensky, 624 A.2d at 642. Bohler-Uddeholm. Am., Inc. v. Elhoood Grp., Inc., 247 F.3d 79, 92-93 (3d Cir.2001). Finally, if a contract provision is found to be ambiguous, “doubtful language is construed most strongly against the drafter thereof.” Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507, 510 (1986). In the instant case, the

section of the lease agreement entitled “Failure to Vacate at End of Lease Term” is the only

section discussing what notice is required once the lease has been converted to a month-to-month -tenancy. This

section makes no mention of any fee or penalty for failure to provide the required one month’s notice before vacating. Although Home may have intended to include a thirty-day notice fee associated with month-to-month tenancies — which seems likely, given that it included a sixty-day notice fee for tenants with contractual lease terms — it did not do so. The Court, reading no ambiguous'terms in the lease agreement, must interpret the agreement “as manifestly expressed, rather than as, perhaps, silently .intended.” Steuart, 444 A.2d at 661.

Accordingly, the Court construes the lease agreement against the drafter, Home, as containing no thirty-day notice fee. Home’s assessment of such a fee for Plaintiffs failure to provide proper notice is not supported by the contract and therefore is a “collection of any amount, including any interest, fee, charge or expense incidental to the principal obligation,” which is not “expressly authorized by the agreement' creating the debt or permitted by law.” 73 P.S. § 2270.4(b)(6)(i). . As a matter of law, Plaintiff has shown that Home violated the FCEUA and Plaintiff is entitled to

summary judgment on this particular claim. b. Home sends accounting letters ■ to prior addresses Plaintiff complains of: the following: [A]n astounding eighty-percent (80%) of Home’s “first-letter” accountings went, like plaintiffs [sic], to the tenant’s prior address with Home.... Home systematically and automatically sent untimely accountings to- tenants at all of the apartment complexes that it owns and operates, deliberately sending those notices to apartment addresses that those tenants had vacated weeks earlier when Home [had] current alternative mailing addresses and e-mail addresses for those tenants.

Pl.’s Br. 5-6 (footnotes omitted). Despite Plaintiffs strong language, he offers no evidence supporting his allegation that Home sent an accounting to his prior Glen Brook address. Instead, Plaintiff, cites to a document Home filed in response to a request by the Special Master. However, contrary to Plaintiffs averment, the document merely states: “Home Properties" L.P. has calculated 19.4%'of the post-íease communications to former lease tenants did use other zip codes for mailings beyond the lease address zip code.” PL’s Mot. Ex. 36, at 7.

This statement makes no mention of “first-letter” accountings, nor does it confirm that accountings were sent to tenants’ prior addresses, as there is quite a difference between a single address and a zip code, Such paltry evidence clearly fails to establish an FCEUA violation for this allegation, at least with respect to Plaintiff. c. Home continually changed the amount due Plaintiff alleges that, toward the end of his tenancy and after, he received multiple notices from Home with differing amounts due. See TAC ¶¶42, 47, 49; PL’s Br. 5 n. 12.

Specifically, he claims that (1) he received a bill for approximately $1,400 in October 2009; (2) later, he received an updated bill for $1,300.40; (3) per his account online, the- amount due had risen to approximately $2,200 in November 2009; (4) shortly thereafter, he received an “Apartment Inspection Report” listing only $982.62; (5) a statement of deposit, which he never received, later listed the total amount due as $2,397.92; and (6) after applying his security deposit, the amount due was reduced to $1,897.92. See PL’s Mot. 5 n. 12.

Although Plaintiff characterizes these differing amounts as part of a practice of deceptive debt collection by Home, these amounts are readily explained by the documents Plaintiff himself has submitted. For example, after receiving the notice that he owed approximately $1,400, Plaintiff disputed the charge; the reduced amount of $1,300.40 appears to be a result of Plaintiffs complaint to the leasing office. See Pi’s Dep. 85:23-86:22.

As discussed in more detail below, the increases to approximately $2,200 and $2,397.92 relate to charges incurred prior to Plaintiffs move-out, and are supported by the Resident Ledger Detail Report. See Pl.’s Suppl. Ex. D. The only amount that cannot be explained is the $982.62 on the “Apartment Inspection Report.” However, Plaintiff has not offered this report into evidence and, for this allegation, has not established that Home violated the FCEUA. d.

Plaintiff’s alleged debt to Home is bogus and illegal Plaintiff alleges generally that Home attempted to collect — and forwarded to Defendant FCO in order to collect — a debt that is “bogus,” PL’s Br. 6, and based on illegal fees, id. at 38. Plaintiff.contends that he owed Home nothing when he vacated his Glen Brook apartment on October 31, 2009. PL’s Resp. to Home 20 & n. 59. In support of this allegation, Plaintiff points to two documents, the Statement of Deposit and the Resident Ledger Detail Report (“the Ledger”). Notably, he does not dispute the payment information or method of calculation'of these reports.

Instead, he focuses his argument on the lack of contractual support for the fees and penalties therein. Plaintiff writes: “Tellingly, not a single one of the provisions Home points to in its standard form lease discloses any of the fees and penalties Plaintiff would not pay.” PL’s Suppl. 8. The Court examines the Statement of Deposit and Ledger in turn. The Statement of Deposit, prepared on November 16, 2009, and printed on December 1, 2009 — although allégedly not received by Plaintiff until some later date —lists séveral outstanding charges totaling $2,397.92. PL’s Resp. to Home Ex. 1.

After applying Plaintiffs security deposit, the amount due was reduced to $1,897.92. Id. Plaintiff does not dispute charges totaling $206.52, which relate to miscellaneous utility charges and fees. Aside from the thirty-day notice fee, covered above, he disputes a charge of $33.20 for “LF2 RM LATE FEE,” a charge of $379.20. for “RNT AUTOCHRG @ 9/30/2009,” and a charge of $888.00 for “RNT AUTOCHRG @ 10/31/2009.” PL’s Resp. to Home 25; see also id. Ex.

L With respect to the late fee, Plaintiff argues that it‘“was derived and assessed . against Plaintiff only because he refused to pay Home the undisclosed 30 day notice penalty!,] rent for November!,] the pro-rated unit-swap fee ... [,] or their (ironically) ‘final admin fee.’ ” PL’s Resp. to Home 25, However, a review of the Ledger, produced 'by Home during discovery, shows that this late fee was assessed, in accordance with the lease agreement’s late fee provision, for Plaintiffs failure to pay timely rent in August, September, and October 2009.' See PL’s Suppl. Ex. D.

With respect to the “9/30/2009” rental charge, Plaintiff argues that this improperly related to “the pro-rated unit-swap fee that was to be waived.” PL’s Resp. to Home 25. Again, the Ledger indicates to the contrary that this $379.20 charge actually relates to the portion of unpaid rent from August and September 2009. See PL’s Suppl. Ex. D. ■ With respect to the “10/31/2009” rental charge, Plaintiff argues that this improperly related to “rent.for November.” PL’s Resp. to Home 25.

The Ledger belies this assertion, showing that the $888.00 actually related to October 2009, which was Plaintiff’s last month at Glen Brook. See PL’s Suppl. Ex. D. In Plaintiffs supplemental brief, he again argues that his alleged debt to Home is based entirely on “illegal fees,” although he makes a further contention that Home owes him approximately $1,700. PL’s Suppl. 6-8. Essentially, he argues that Home steadily- and inexplicably increased his average monthly bill from July through November 2009. Id. at 6. However, a brief review of the Ledger reveals Plaintiffs error.

The additional charges Plaintiff complains of comprise late fees legitimately assessed; a utility bill true-up which Plaintiff has acknowledged, PL Dep. 43:3-44:21; the increased rent associated with his month-to-month tenancy, which Plaintiff. has also acknowledged, id. at 23:10-20; the thirty-day notice fee; and rent for November which (Plaintiff fails to note) was subsequently credited back to his account. See PL’s Supp. Ex. D.

In other words, aside from the thirty-day notice fee,- Plaintiffs argument is completely unsupported by the record; he has not shown that Home has violated the FCEUA by generally attempting to collect a bogus or illegal debt. In sum, the Court finds that Plaintiff is entitled to

summary judgment on his FCEUA claim as it relates to the thirty-day notice fee only. On Plaintiffs other claims under the FCEUA, and taking the evidence in the light most favorable to Defendant Home as the nonmoving party, Plaintiff has not established that

summary judgment is appropriate. Moreover, considering Home’s motion for

summary judgment on these, claims, and taking the evidence .in the light most favorable - -to Plaintiff as the nonmoving party, Plaintiff has not shown that a genuine dispute of material fact exists sufficient to survive

summary judgment. Accordingly, on Count II of the Third Amended Class Action Complaint, Plaintiff’s motion for

summary judgment will be granted as to the thirty-day notice fee claim and denied as to all other claims. Likéwise, Home’s motion for

summary judgment will be denied as to the thirty-day notice fee claim and granted as to all other claims. 2. Claims Against Defendant FCO As stated above, a debt collector’s violation of the FDCPA is a per se violation of the FCEUA. See 73 P.S. § 2270.4(a). Having previously granted

summary judgment in favor of two of Plaintiffs claims under the FDCPA, the Court will follow this course for Plaintiffs claims under the FCEUA, Accordingly, on Count II of the Third Amended Class Action Complaint, Plaintiffs motion for

summary judgment will be granted and FCO’s cross-motion for

summary judgment will be denied to the extent the Court granted

summary judgment to. Plaintiff on his FDCPA claims. ■ Plaintiffs motion for

summary judgment will be denied and FCO’s cross-motion for

summary judgment will be denied to the extent the Court denied

summary judgment to both parties on Plaintiffs FDCPA claims. Plaintiffs motion for

summary judgment will be denied and FCO’s cross-motion. for

summary judgment will be granted on all other claims. C. COUNT III: UTPCPL Pennsylvania’s UTPCPL provides that [a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by

section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. 73 P.S. § 201-9.2. The act declares unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” § 201-3, and sets out a nonexhaustive listing of such prohibited conduct. See § 201-2. 1. Claims Against Defendant Home Plaintiff argues principally that Home’s FCEUA violations constitute per se violations of the UTPCPL. See TAC ¶ 98; Pl.’s Resp. to Home 36.

As the FCEUA provides, “[i]f a debt collector or creditor engages in an unfair or deceptive debt collection act or practice under this act, it shall constitute a violation of the act of December 17, 1968 (P.L. 1224, No. 387), known as the Unfair Trade Practices and Consumer Protection Law.” 73 P.S. § 2270.5(a). Accordingly, because the Court found above that Home violated the FCEUA — albeit with respect to the thirty-day notice fee claim only — it follows that Home’s conduct amounts to a per se violation of the UTPCPL as well.

Furthermore, Home suggests that Plaintiff suffered no loss as a result of Home’s actions, as the UTPCPL requires. Home’s Br. 26. However, as the Court pointed out previously, “Plaintiff alleges that he was forced to retain counsel to resist FCO’s collection efforts and in his prayer for relief requests all reasonable attorneys’ fees.” Jarzyna v. Home Props., L.P., 763 F.Supp.2d 742, 749 (E.D.Pa.2011) [hereinafter Jarzyna 7]. Likewise, Plaintiff retained counsel here to effectively dispute the improperly charged thirty-day notice fee. Plaintiff’s UTPCPL claim as to this charge thus withstands

summary judgment. Although Plaintiff states that Home “also [is] liable for separate, independent substantive violations of the 'UTPCPL,” he only generally alleges Home’s “misrepresentation that Plaintiff owed the debt” and that Home “engaged in deceptive and/or fraudulent conduct that created likelihood [sic] of confusion or' of misunderstanding prohibited by [the UTPCPL].” TAC ¶ 101. Upon review of Plaintiff’s briefing, the Court notes that he alleges the same conduct for both his FCEUA and UTPCPL claims. See PL’s Br. 34-39; PL’s Resp. to Home 34-36.' The Court therefore finds that — as with his FCEUA claims — not only has Plaintiff not established that

summary judgment is appropriate on these UTPCPL claims, he has not shown that a genuine dispute of material fact exists sufficient to allow these claims to survive Home’s motion for

summary judgment. In sum, on Count III of the Third Amended Class Action Complaint, Plaintiffs motion for

summary judgment will be granted as to the thirty-day notice fee claim and denied as to all other claims. Likewise, Defendant Home’s motion for

summary judgment will be denied as. to the thirty-day notice fee claim and granted as to all other claims. 2. Claims Against Defendant FCO Similarly, because the Court found above that FCO violated the FCEUA (by way of certain FDCPA violations), it follows that FCO’s conduct amounts to a per se violation-of the UTPCPL as'well. See 73 P.S. § 2270.5(a). FCO argues that Plaintiff'suffered no “ascertainable'loss of money or property” as á result of Home’s actions, as the UTPCPL requires. FCO’s Br. 48.

However, as the Court pointed out previously,- “Plaintiff alleges that he was forced to retain counsel to. resist FCO’s collection efforts and in his prayer for relief requests all reasonable attorneys’ fees.” Jarzyna 1, 763 F.Supp.2d at 749. Plaintiffs UTPCPL claim as to this charge thus withstands

summary judgment. Accordingly,. on Count III of the Third Amended Class Action Complaint, Plaintiffs motion for

summary judgment will be granted and FCO’s cross-motion for

summary judgment will be denied to the extent the Court granted

summary judgment to Plaintiff on his FDCPA claims. Plaintiffs motion for

summary judgment is denied and FCO’s cross-motion for

summary judgment is denied to the extent the Court denied

summary judgment to both parties on Plaintiffs FDCPA claims. Plaint

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