Pollak v. Portfolio Recovery Assocs., LLC (285 F. Supp. 3d 812, 2018)

Citations

285 F. Supp. 3d 812

Full opinion text

Martinotti, District Judge

Before this Court are: (1) Plaintiffs Bracha Pollak ("Pollak") and David Beneli's ("Beneli," together with Pollak, "Plaintiffs") Motion for Summary Judgment (ECF No. 50) and Motion to Certify Class (ECF No. 51); and (2) Defendant Portfolio Recovery Associates, LLC's ("PRA") Motion for Summary Judgment. (ECF No 52.) All motions are opposed. (ECF Nos. 53, 54, 55, and 56.) Pursuant to Federal Rule of Civil Procedure 78(b), the Court did not hear oral argument. For the reasons set forth below, PRA's Motion for Summary Judgment is GRANTED in part and DENIED in part , Plaintiffs' Motion for Summary Judgment is DENIED , and Plaintiffs' Motion to Certify Class is GRANTED .

I. BACKGROUND

A. PRA's Collection Process

PRA purchases debts from original lenders that the creditor is no longer attempting to collect. (PRA's Statement of Undisputed Facts (ECF No. 50-2) ¶ 1.) After PRA purchases the debt, it attempts to recover the debt through various processes and procedures, which include making telephone calls and sending collection letters. (Id. ¶ 2.) These initial collection letters do not include language regarding potential litigation. (Id. ¶ 3 and Decl. of Susan J. Guevara (ECF No. 50-4) ¶ 6.) If PRA's collection procedures are unsuccessful at this stage, PRA evaluates the individual accounts to determine whether they are appropriate for potential litigation and, if so, the account will be sent to the Litigation Department, where a separate collection process ensues. (ECF No. 50-2 ¶¶ 4-6 and see Dep. of Susan J. Guevara (ECF No. 50-3) at 38-41.) If an account is not placed with the Litigation Department, suit is never filed. (ECF No. 50-2 ¶ 7.)

PRA's Litigation Department is a separate department with approximately 280 employees, including 54 attorneys. (Id. ¶ 8.) Once an account is transferred to PRA's Litigation Department, PRA attempts to collect the debt through collection letters sent directly from that department. (Id. ¶ 9.) The first letter PRA sends is identified as the LL1 Letter, which typically offers certain settlement options to the debtor and provides the debtor with approximately thirty days to respond. (Id. ¶¶ 11-12.) If the debtor accepts any of the settlement options in the LL1 Letter, PRA will honor those settlement options. (Id. ¶ 13.) However, if no response is received, PRA's Litigation Department sends a second letter, the LL2 Letter. (Id. ¶ 14.) The LL2 Letter is always sent prior to initiating a lawsuit if the debtor failed to respond to the LL1 letter, dispute the amount, or make any payment. (See Dep. of Guevara (ECF No. 52-9) at 43-46.) The LL2 Letter offers less favorable settlement terms and a different thirty day deadline by which the debtor must respond. (ECF No. 50-2 ¶ 15.) If the LL2 Letter goes unanswered, the account is referred to an attorney, for the first time, from PRA's Litigation Department who reviews the file prior to initiating a lawsuit. (Id. ¶ 16 and Pls.' Statement of Undisputed Facts (ECF No. 52-2) ¶ 20 (stating the first time an account is ever reviewed by an attorney is sixty days after the LL2 Letter is sent out).) Notably, at the time a debtor's account is transferred to the Litigation Department, there has been no determination by an attorney that the account is ready for litigation. (ECF No. 52-2 ¶ 17 and PRA's Resp. to Pls.' Statement of Undisputed Facts (ECF No. 54-2) ¶ 17.)

If a reviewing attorney determines the account is appropriate for litigation, either an attorney employed by PRA or external counsel hired by PRA will file suit. (ECF No. 50-2 ¶ 18.) However, if the debtor accepts the settlement offer in the LL2 Letter, PRA honors that settlement offer. (Id. ¶ 17.) "If a debtor disputes the debt after the debt has been transferred to PRA's Litigation Department, PRA's policy is to remove that account from the litigation process while the dispute is pending." (ECF No. 50-4 ¶ 22.)

B. Pollak's Account

In 2008, Pollak entered into an agreement for a credit card with U.S. Bank, N.A. ("U.S. Bank"). (ECF No. 50-2 ¶ 19.) Pollak's credit card with U.S. Bank was used to pay for personal and household items, not business expenses. (ECF No. 52-2 ¶ 5 and ECF No. 54-2 ¶ 5.) On August 25, 2014, PRA acquired Pollak's account from U.S. Bank. (ECF No. 50-2 ¶ 20.) Pollak's balance due on his credit card totaled $7,764.23. (Id. ¶ 21.) On December 5, 2014, after PRA attempted to collect the debt through its traditional practices and received no response from Pollak, it transferred the debt to its Litigation Department. (Id. ¶ 22.)

On December 8, 2014, PRA's Litigation Department sent Pollak a LL1 Letter. The LL1 Letter stated:

Account Transferred to Litigation Department

Your account has been transferred to the Litigation Department. At this time, no attorney within the Litigation Department has personally reviewed the particular circumstances of your account.

Portfolio Recovery Associates wants to help you resolve this account and avoid potential legal action!

Single Payment 6 Month Payment 12 Month Payment Settlement Plan Plan • Save • Save $1, • Save $2,329.27 941.05 off the $1,552.79 off off the balance the balance balance • Pay $970.53 • Pay $517.62 • Pay per month for per month for $5,434,96 the next 6 the next 12 months months

Your account qualifies for our settlement program. Here are three options for you to choose from:

Your first payment must be received in our office no later than 01/05/2015. Your account will be considered "Settled in Full" once we post your final payment.

Benefits of settling this account by one of the plans as described above:

• Your debt on this account will be resolved

• All collection activities on this account will cease

• You will avoid potential legal action

• If our company is reporting this account to the three major credit reporting agencies, we will request that our company's trade line be updated to reflect that this account is not settled.

However, if you do not resolve this account any legal action is taken against you, a judgment may ultimately be obtained and our local attorney may take any action that is legally available in your state to collect this debt to enforce any such judgment against you as permitted by state law.

Please contact our office no later than 01/05/2015 by calling during our business hours to discuss how we can work together to resolve this account. We reserve the right to withdraw or modify this offer at a later date if no payments or payment arrangements are made by 01/05/2015 .

....

We are not obligated to renew this offer.

(Pollak's LL1 Letter (ECF No. 50-7); see ECF No. 50-2 ¶¶ 25-32 and ECF No. 52-2 ¶ 2.) No attorney in PRA's Litigation Department or otherwise reviewed Pollak's account prior to mailing the LL1 Letter. (ECF No. 50-2 ¶ 24 and ECF No. 52-2 ¶ 19.) Pollak did not respond to or pay any money in response to the LL1 Letter. (ECF No. 50-2 ¶ 33 and ECF No. 52-2 ¶ 3.)

As a result, after the expiration of the settlement options outlined in the LL1 Letter, PRA sent Pollak a LL2 Letter dated January 6, 2015. (ECF No. 50-2 ¶ 34 and ECF No. 52-2 ¶ 3.) No attorney in PRA's Litigation Department or otherwise reviewed Pollak's account prior to mailing the LL2 Letter. (ECF No. 50-2 ¶ 35; ECF No. 52-2 ¶ 19.) The LL2 Letter stated:

SECOND NOTICE: Account Transferred to Litigation Department

Unfortunately, we have not received a response to our recent letter informing you that your account was previously transferred to our Litigation Department. At this time, no attorney within the Litigation Department has personally reviewed the particular circumstances of your account.

Portfolio Recovery Associates still wants to help you resolve this account and avoid potential legal action!

We remain willing to settle this account for $6,211.38 if funds are received in our office by 02/05/2015 .

Benefits of settling this account by this date:

• Your debt on this account will be resolved

• All collection activities on this account will cease

• You will avoid potential legal action

• If our company is reporting this account to the three major credit reporting agencies, we will request that our company's trade line be updated to reflect that this account is not settled.

However, if you do not resolve this account and legal action is taken against you, a judgment may ultimately be obtained and our local attorney may take any action that is legally available in your state to collect this debt to enforce any such judgment against you as permitted by state law.

Please contract our office no later than 02/05/2015 by calling during our business hours to discuss how we can work together to resolve this account. We reserve the right to withdraw or modify this offer at a later date if no payments or payment arrangements are made by 02/05/2015 .

....

We are not obligated to renew this offer.

(Pollak's LL2 Letter (ECF No. 50-8); see ECF No. 50-2 ¶¶ 36-41 and ECF No. 52-2 ¶ 4.) Pollak did not respond to or pay any money in response to the LL2 Letter. (ECF No. 50-2 ¶ 42.)

On February 17, 2015, Pollak's account was transferred to a PRA attorney for evaluation. (Id. ¶ 43.) On April 7, 2015, PRA filed suit in New Jersey state court to collect Pollak's debt, and a default judgment was entered in PRA's favor on May 18, 2015. (Id. ¶¶ 44-45.)

C. Beneli's Account

In 2011, Beneli entered into an agreement for a credit card with Citibank, N.A. ("Citibank"). (Id. ¶ 46.) Beneli's credit card with Citibank was used to pay for personal and household items, not business expenses. (ECF No. 52-2 ¶ 10 and ECF No. 54-2 ¶ 10.) On October 20, 2014, PRA acquired Beneli's account from Citibank. (ECF No. 50-2 ¶ 47.) Pollak's balance due on his credit card totaled $2,946.49. (Id. ¶ 48.) On March 5, 2015, after PRA attempted to collect the debt through its traditional practices and received no response from Beneli, it transferred the debt to its Litigation Department. (Id. ¶ 49.)

On March 9, 2015, PRA's Litigation Department sent Beneli a LL1 Letter. Beneli's LL1 Letter mirrors Pollak's save the three settlement program options and the dates by which to settle the account. (Beneli's LL1 Letter (ECF No. 50-10).) Beneli was offered:

Single Payment 6 Month Payment Plan 12 Month Payment Settlement Plan • Save 736.63 off • Save $883.95 the balance • Save $589.33 off the • Pay $368.31 off the balance balance per month for • Pay $196.43 per • Pay the next 6 month for the $2,062.54 months next 12 months

(Id. ) No attorney in PRA's Litigation Department or otherwise reviewed Beneli's account prior to mailing the LL1 Letter. (ECF No. 50-2 ¶ 51 and ECF No. 52-2 ¶ 19.) Beneli did not respond to or pay any money in response to the LL1 Letter. (ECF No. 50-2 ¶ 60 and ECF No. 52-2 ¶ 8.)

As a result, after the expiration of the settlement options outlined in the LL1 Letter, PRA sent Pollak a LL2 Letter dated April 7, 2015. (ECF No. 50-2 ¶ 61 and ECF No. 52-2 ¶ 8.) No attorney in PRA's Litigation Department or otherwise reviewed Beneli's account prior to mailing the LL2 Letter. (ECF No. 50-2 ¶ 62 and ECF No. 52-2 ¶ 19.) Beneli's LL2 Letter mirrors Pollak's LL2 Letter save the amount for which to settle the account and the settlement date. (Beneli's LL2 Letter (ECF No. 50-13).) Beneli did not respond to or pay any money in response to the LL2 Letter. (ECF No. 50-2 ¶ 69.)

On May 14, 2015, Beneli's account was transferred to a PRA attorney for evaluation. (Id. ¶ 70.) On June 15, 2015, prior to PRA filing a suit against Beneli, Beneli disputed his debt with PRA. (Id. ¶ 71.) Therefore, PRA refrained from filing suit against Beneli until the dispute was resolved. (Id. ¶¶ 71-72.) After the dispute was resolved, but before PRA filed suit against Beneli, Beneli filed suit against PRA. (Id. ¶ 73.)

D. Facts Relating to Class Certification

Plaintiffs seek to certify two separate classes, defined as:

• Class A: All New Jersey consumers (1) who received a 'LL1' template collection letter from [PRA] similar to the annexed Exhibit A, (2) on an obligation owed or allegedly owed to U.S. Bank, (3) during the time period of June 9, 2014 to the present.

• Class B: All New Jersey consumers (1) who received a 'LL1' template collection letter from [PRA] similar to the annexed Exhibit C, (2) on an obligation owed or allegedly owed to Citibank N.A., (3) during the time period of March 9, 2015 to the present.

(ECF No. 51-1 at 10.) PRA acknowledges it mailed the LL1 Letter to 731 individuals encompassed within Class A and 5,980 individuals encompassed within Class B. (PRA's Second Supp. Resp. to Pls.' Interrogatories (ECF No. 51-8 at 5-6.)

E. Procedural History

On June 15, 2015, Pollak filed a putative class action on behalf of herself and all U.S. Bank debtors residing in New Jersey who received LL1 Letters, alleging PRA violated the Fair Debt Collection Practices Act 15 U.S.C. § 1692e et seq. ("FDCPA"). (Compl. (ECF No. 1).) Beneli commenced a separate putative class action on March 9, 2016, on behalf of himself and all Citibank debtors residing in New Jersey who received LL1 Letters, alleging PRA violated the FDCPA. (Docket No. 16-1328, ECF No. 1.) On August 22, 2016, the matters were consolidated. (ECF No. 33.) On September 2, 2016, Plaintiffs filed a joint Amended Complaint. (Am. Compl. (ECF No. 34).) On April 4, 2017, Plaintiffs and PRA filed motions for summary judgment. (ECF Nos. 50 and 52.) Both motions are opposed. (ECF Nos. 54, 55, and 56.) On that same date, Plaintiffs filed a Motion to Certify Class. (ECF No. 51.) PRA opposes this Motion. (ECF No. 53.)

II. SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. Cty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' " Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ) ); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Curley v. Klem , 298 F.3d 271, 276-77 (3d Cir. 2002). "Summary judgment may not be granted ... if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Nathanson v. Med. Coll. of Pa. , 926 F.2d 1368, 1380 (3rd Cir. 1991) (citing Gans v. Mundy , 762 F.2d 338, 340 (3d Cir.), cert. denied , 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985) ); Ideal Dairy Farms, Inc. v. John Labatt, Ltd. , 90 F.3d 737, 744 (3d Cir. 1996).

The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial." Id. at 331, 106 S.Ct. 2548. On the other hand, if the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production by either (1) "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim" or (2) demonstrating "that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Id. Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 ; see also Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ; Ridgewood Bd. of Ed. v. Stokley , 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc. , 974 F.2d 1358, 1363 (3d Cir. 1992).

There can be "no genuine issue as to any material fact," however, if a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548 ; Katz v. Aetna Cas. & Sur. Co. , 972 F.2d 53, 55 (3d Cir. 1992).

B. FDCPA Claims

Congress enacted the FDCPA in 1977 as a result of the abundance "evidence of the use of abusive, deceptive, and unfair debt collection practices" and the inadequacy of existing laws and procedures designed to protect consumers. 15 U.S.C. § 1692(a), (b). At the time, Congress was concerned that "[a]busive debt collection practices contribute to the number of personal bankruptcies, to material instability, to the loss of jobs, and to invasions of individual privacy." 15 U.S.C. § 1692(a). The stated purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors" and to promote further action to protect consumers against debt collection abuses. Kaymark v. Bank of Am., N.A. , 783 F.3d 168, 174 (3d Cir. 2015) (quoting 15 U.S.C. § 1692(e) ). "The right congress sought to protect in enacting this legislation was therefore not merely procedural, but substantive and of great importance." Blaha v. First Nat'l Collection Bureau , No. 16-2791, 2016 U.S. Dist. LEXIS 157575, at *23 (D.N.J. Nov. 10, 2016).

"Because the FDCPA is a remedial statute, we construe its language broadly so as to effect its purpose." Lesher v. Law Offices of Mitchell N. Kay, PC , 650 F.3d 993, 997 (3d Cir. 2011) (citing Brown v. Card Serv. Ctr. , 464 F.3d 450, 453 (3d Cir. 2006) ). Accordingly, communications from lender to debtors are analyzed from the perspective of the "least sophisticated debtor." Brown , 464 F.3d at 454. "The basic purpose of the least-sophisticated [debtor] standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd. This standard is consistent with the norms that courts have traditionally applied in consumer-protection law." Id. at 453 (citation omitted).

The "least sophisticated debtor" "prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care." Wilson v. Quadramed Corp. , 225 F.3d 350, 354-55 (3d Cir. 2000) (citation omitted). "Even the least sophisticated debtor is bound to read collection notices in their entirety." Campuzano-Burgos v. Midland Credit Mgmt. , 550 F.3d 294, 299 (3d Cir. 2008).

To succeed on an FDCPA claim, a plaintiff must establish: "(1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a 'debt' as the [FDCPA] defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt." Douglass v. Convergent Outsourcing , 765 F.3d 299, 303 (3d Cir. 2014) ; see also Jensen v. Pressler & Pressler , 791 F.3d 413, 417 (3d Cir. 2015). Only the fourth prong is disputed here. (ECF No. 52-1 at 7; see ECF No. 50-1 and ECF No. 56.)

Plaintiffs assert the LL1 Letter violated 15 U.S.C. § 1692e, the provision of the FDCPA dealing with communications from debt collectors to debtors. They claim the LL1 Letter violated three specific subsections: § 1692e(3), (5), and (10). (ECF No. 52-1 at 8.) Specifically, Plaintiffs argue the LL1 letter violated the FDCPA because it "emphasized (1) the involvement of a 'Litigation Department', (2) the need to respond by a stated deadline set 30-day in the future, and (3) the implication that failure to respond by the stated deadline may result in potential legal action." (ECF No. 52-1 at 8.) Therefore, the opinion will only address these issues.

C. Whether the LL1 Letter Violates § 1692e(5) and/or (10) by Threatening Immediate Legal Action

Plaintiffs argue PRA's LL1 Letter violated the FDCPA by setting non-existent deadlines and falsely threatening debtors with imminent legal action if those deadlines were disregarded. (ECF No. 52-1 at 8.) Moreover, they argue PRA never intended to sue any debtor who failed to respond to its LL1 Letter and therefore violated the FDCPA. (Id. ) PRA argues it did not violate any provision of the FDCPA because the LL1 Letter did not threaten any potential litigation or create a sense of urgency, but instead was just a settlement offer. (ECF No. 50-1 at 15-20.) PRA further argues it did not violate the FDCPA because it eventually filed suit to collect the debt addressed in its LL1 Letter. (ECF No. 50-1 at 7-14.)

Determining whether PRA's LL1 Letter could reasonably be perceived as a "threat to take legal action" using the "least sophisticated standard" under the circumstances of this case is best left to jury determination. LeBlanc v. Unifund CCR Partners , 601 F.3d 1185, 1195 (11th Cir. 2010) ; see Ideal Dairy Farms, Inc. , 90 F.3d at 744 ("Summary judgment may not be granted ... if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed."). In the summary judgment context, the burden of persuasion is on the Plaintiffs to prove that no reasonable jury, viewing the letter through the eyes of a "least sophisticated debtor," and making all reasonable inferences in PRA's favor, could find the letter was merely informative or a settlement offer as opposed to threatening. LeBlanc , 601 F.3d at 1195.

Section 1692e provides:

A debt collector may not use any false, deceptive, or misleading representation or 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 section:

....

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

....

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

A debtor collector violates section 1692(e)(5) where it asserts it could take legal action "it had no intention of taking and has never or very rarely taken before." Brown , 464 F.3d at 455. A debt collector also violates the 1692(e)(5) by falsely threatening imminent litigation before the decision whether to sue has been made. See id. ; Bentley v. Great Lakes Collection Bureau , 6 F.3d 60, 63 (2d Cir. 1993) ; cf. Newman v. Checkrite Cal., Inc. , 912 F.Supp. 1354, 1380 (E.D. Cal. 1995) (finding a letter suggesting suit was imminent violated § 1692e(5) because the sender was not in position to file suit imminently). The fact that debtors were eventually sued, "though relevant, is not dispositive. The issue is whether the threat of imminent litigation was true when made." Nance v. Friedman , No. 98-6720, 2000 WL 1700156, at *2 (N.D. Ill. Nov. 8, 2000) ; see Newman , 912 F.Supp. at 1380 n.38 ("The fact that [a defendant] did bring suit against [a plaintiff] after this lawsuit was filed does not speak to his state of mind or his ability to sue at the time the letter was sent.")

The Federal Trade Commission's commentary (the "FTC Commentary") to the FDCPA further supports this conclusion. The FTC Commentary observes that a debt collector "may state that a certain action is possible, if it is true that such action is legal and is frequently taken by the collector or creditor with respect to similar debts," but where the debt collector "has reason to know there are facts that make the action unlikely in the particular case, a statement that the action was possible would be misleading." 53 Fed. Reg. 50097, 50106 (1988). "In other words, were it proven that the [debt collector] had reason to know that the legal action described in its letter to [the plaintiff] was unlikely, its statement in the [ ] Letter that it was possible could be deemed misleading." Brown , 464 F.3d at 455.

Therefore, the first issue is whether the LL1 Letter actually contained a threat or imminent threat of litigation in violation of § 1692e(5). The Third Circuit's decision in Brown , the Eleventh Circuit's decision in LeBlanc , and the Massachusetts District Court in Waters v. J.C. Christensen & Assocs. , No. 08-11795, 2011 WL 1344452, 2011 U.S. Dist. LEXIS 41075 (D. Mass. Mar. 4. 2011) are particularly instructive. In Brown , the Third Circuit found the debtor had stated a claim under § 1962e(5) and the District Court had incorrectly dismissed her suit. 464 F.3d at 451. In that case, Card Service Center ("CSC") sent the plaintiff a letter informing her that, unless she made arrangements to pay her debt within five days, the matter "could" result in referral of the account to CSC's attorney, and "could" result in "a legal suit being filed." Id. at 451-52. Later, the plaintiff sued, claiming CSC had no intention of referring her account to an attorney and no intention of filing a lawsuit, therefore the letter violated § 1692e's ban on false, misleading, or deceptive communications. Id. at 452. The district court dismissed the complaint, determining that because "[t]he letter neither states nor implies that legal action is imminent, only that it is possible," the plaintiff failed to state a § 1692e(5) violation. Id. at 454. However, the Third Circuit reversed, concluding:

Upon reading the CSC Letter, the least sophisticated debtor might get the impression that litigation or referral to a CSC lawyer would be imminent if he or she did not respond within five days. We do not believe that such a reading would be "bizarre or idiosyncratic," see Quadramed , 225 F.3d at 354, and we thus conclude that further proceedings are warranted to determine if such a reading is "reasonable" in light of the facts of this case. A debt collection letter is deceptive where "it can be reasonably read to have two or more different meanings, one of which is inaccurate." Id. (citation omitted). If [the plaintiff] can prove, after discovery that CSC seldom litigated or referred debts such as [the plaintiff's] and those of the putative class members to an attorney, a jury could conclude that the CSC Letter was deceptive or misleading vis-à-vis the least sophisticated debtor.

Id. at 455.

The Third Circuit in Brown also made clear that the use of conditional language does not insulate a debt collector from liability. Id. at 454-55. This holding is in line with other Circuit Courts. See Gonzales v. Arrow Fin. Servs., LLC , 660 F.3d 1055, 1062-63 (9th Cir. 2011) ("Conditional language, particularly in the absence of any language clarifying or explaining the conditions, does not insulate a debt collector from liability."); Leblanc , 601 F.3d at 1196 (rejecting a debt collector's reliance on the use of conditional language "in an effort to safeguard the letter from being construed as 'threatening' ").

In Leblanc , the Eleventh Circuit considered whether, as a matter of law, a dunning letter received from the debt collector's "Legal Department" contained a "threat" to sue the debtor in violation of § 1692e(5) when the collector could not legally pursue the suit. 601 F.3d at 1195-96. In that case, the first paragraph of the letter explained that the debt collector purchased the debtor's debt and provided the particulars of the debt it sought to collect. Id. at 1195. The second paragraph included the following critical language:

If we are unable to resolve this issue within 35 days we may refer this matter to an attorney in your area for legal consideration. If suit is filed and if judgment is rendered against you, we will collect payment utilizing all methods legally available to us, subject to your rights below.

The third paragraph directed the debtor to a website that may be used to "resolve" his account and included instructions for making payments. Id. The next paragraph contained the "validation of debt" notice and procedures for disputing the debt required by statute. Id. at 1196. The letter also expressly identified itself as a "communication [ ] from a debt collector" and stated "[t]his is an attempt to collect a debt and any information obtained will be used for that purpose." Id. The final paragraph stated, "Please feel free to contact us," and provided a telephone number and a website. Id. At the bottom of the letter, an asterisk directed the debtor to see the reverse side for "important information regarding [his] rights." Id.

The court stated, "read literally, the letter merely advises that legal action is possible , that it is possible for [the debt collector] to refer the matter to an attorney for consideration, that a lawsuit is only one possible outcome or result." Id. Therefore, the court reversed summary judgment entered in favor of the debtor on the § 1692e(5) claim, finding "a reasonable juror could find the dunning letter was more informative than threatening and did not threaten imminent legal action." Id. However, the court also denied the debt collector's summary judgment motion, holding "a reasonable juror applying the 'least-sophisticated consumer' standard could also view this letter as either an overt or thinly-veiled threat of suit." Id. In doing so, the court rejected the debt collector's argument that the use of "conditional language such as 'if' and 'may' precluded the existence of a threat." Id. Even with that language, the Eleventh Circuit found the letter could be read "as intimating that a lawsuit will follow immediately after the end of the 35 day 'grace' period," and the court found even "more significant" the fact that the letter shifted "to more forceful language" to the effect that, if a successful lawsuit followed, the collector promised to "collect payment utilizing all methods legally available. " Id. Finally, the court noted that, "although not determinative," the fact that the letter stated that it had originated from the debt collector's "legal department" was yet an added "hint or suggestion of intimidation." Id.

In Waters , the court granted summary judgment in favor of the debt collector, finding its letters did not violate the FDCPA. 2011 U.S. Dist. LEXIS 41075, *12. In that case, the debt collector sent the debtor three letters in attempt to collect its debt. Id. at 8-10. The debtor argued the first and second letter violated § 1692e(10) because

the clear import of both Letters was that unless the [debtor] settled the Account within a certain period of time, the Account would be forwarded to a Massachusetts attorney for collection.... Because the [debtor] did not settle the account within the stated timeframe and the Accounts were not forwarded to an attorney, the letters were deceptive and misleading.

Id. at 22. The court did not agree.

The first letter stated, in relevant part:

NOTICE OF LEGAL REVIEW AND SETTLEMENT OPTION

Dear John L Waters,

Our client, RESURGENT CAPITAL SERVICES, has contracted our services to represent them with regard to the Sears account which they now own. RESURGENT CAPITAL SERVICES has prescreened and reviewed your account to be forwarded to an Attorney's office and our client has legal representation in Massachusetts.

Our client has given us authorization to negotiate GENEROUS SETTLEMENT TERMS on their behalf. Please review the following settlement opportunities to make voluntary resolution of your account a reality:

* * *

Take advantage of this opportunity to settle your account and as long as you maintain your payment arrangement, suspend forwarding this account to an Attorney.... For accounting purposes, your first payment toward the settlement must be received within 40 calendar days after the date on this letter. If you wish to make a payment proposal after that time, please call us to discuss it....

Id. at 7-8. The debtor did not contact the debt collector or take any other action with respect to this letter. Id. at 8. Therefore, a second letter was sent, which stated, in relevant part:

NOTICE OF INTENT TO SETTLE

Dear John L Waters,

Our client, RESURGENT CAPITAL SERVICES, has contracted our services to represent them with regard to the Sears account which they now own. We have been unable to work out an agreement with you to resolve this situation. THIS ACCOUNT WILL BE FORWARDED TO AN ATTORNEY in Massachusetts if you do not contact us to resolve this account.

... our client is willing to offer you SUBSTANTIAL SAVINGS and FLEXIBLE SETTLEMENT TERMS to attempt to help you voluntarily resolve your account.

* * *

Take advantage of this opportunity to settle your account and as long as you maintain your payment arrangement, suspend forwarding this account to an Attorney.... For accounting purposes, your first payment toward the settlement must be received within 30 calendar days after the date on this letter. If you wish to make a payment proposal after that time, please call us to discuss it....

Id. at 8-9. Again, no action was taken with respect to the second letter. Id. at 9. Therefore, the debt collector sent another collection letter. Id. The third letter stated, in relevant part:

FINAL NOTICE OF LEGAL REVIEW

Dear John L Waters,

Our client, RESURGENT CAPITAL SERVICES, has contracted our services to represent them with regard to the Sears account which they now own. We have been unable to work out an agreement with you to resolve this situation. RESURGENT CAPITAL SERVICES has advised us that THIS ACCOUNT WILL BE FORWARDED TO AN ATTORNEY in the state of Massachusetts if you do not contact us to resolve this account.

If you are unable to pay your account in full, our client is willing to offer you SUBSTANTIAL SAVINGS AND FLEXIBLE SETTLEMENT TERMS to attempt to help you voluntarily resolve your account....

Take advantage of this opportunity to settle your account and as long as you maintain your payment arrangement, suspend forwarding this account to an Attorney.... For accounting purposes, your first payment toward the settlement must be received within 30 calendar days after the date on this letter. If you wish to make a payment proposal after that time, please call us to discuss it.

Id. at 9-10. Again, no action was taken with respect to the third letter. Id. at 10. Therefore, the account was placed with a law office for collection. Id.

The court found the first letter was not deceptive because the caption of the letter informed the debtor the account was undergoing legal review and that the debt collector was making a settlement offer. Id. at 24-25. The letter further stated the debt collector had "prescreened and reviewed" the account to be forwarded to an attorney's office, and the record revealed those statements were true. Id. at 25. Indeed, the debt collector had already reviewed the account as one to be forwarded to an attorney and had already retained counsel in Massachusetts. Id. The court also found the letter did not state the settlement offer was a "one-time" offer or that is was "only" valid for the forty days. Id. at 26. The court noted:

the First Letter leaves the possibility open that an alternative settlement arrangement could be made, even after the 40-day period: "If you wish to make a payment proposal after that time, please call us to discuss it." ... "Not only would 'the least sophisticated debtor' understand that the expiration of a mere 'offer' does not necessarily foreclose the possibility of the parties later agreeing to its terms, but [t]he practical consequence of holding [offer] letters unlawful would be to prohibit settlement offers that are anything but the debt collector's best and final offer."

Id.

The court also found the second letter was neither false nor deceptive for similar reasons. Id. at 27. "The only material difference between the [f]irst and [s]econd letter is that the [s]econd letter states that 'THIS ACCOUNT WILL BE FORWARDED TO AN ATTORNEY in Massachusetts if you do not contact us to resolve this account.' " Id. at 27-28. The court found that "simply because the [debt collector] made one more settlement offer to the [debtor] (by way of the [t]hird [l]etter) prior to sending the [a]ccount to the Daniels Law Office for collection," did not render it false or misleading. Indeed, the debt collector forwarded the account to an attorney, and the second letter did not foreclose the possibility of settlement under different terms or after the thirty days. Id. at 28.

In this case, the parties disagree about the inferences that can be drawn from the LL1 Letter, more specifically, whether the LL1 Letter threatens potential or immediate litigation. The LL1 Letter begins by stating "Account Transferred to Litigation Department , " followed by, "[a]t this time, no attorney within the Litigation Department has personally reviewed the particular circumstances of your account." (ECF No. 50-7.) The next sentence, including critical language, reads: "Portfolio Recovery Associates wants to help you resolve this account and avoid potential legal action! " Id. Thereafter, the LL1 Letter states the account qualifies for a settlement program, articulates three options to choose from, and states "[y]our first payment must be received in our office no later than 01/05/2015 ." Id. Those statements are followed by a list of benefits for settling the account, one of them being to "avoid potential legal action." Id. Lastly, the LL1 Letter states:

....

We are not obligated to renew this offer.

Id.

The Court finds this matter analogous to LeBlanc , where reasonable jurors applying the "least sophisticated debtor" standard could disagree as to the inferences to be drawn from PRA's LL1 Letter to the Plaintiffs. Read literally, the letter merely advises that legal action is possible and that legal action is one possible outcome or result if settlement is not achieved. Taking the most literal reading, a reasonable juror could find the LL1 Letter was just a settlement offer and informative and did not threaten potential, let alone immediate legal action. See Kryluk v. Northland Grp., Inc. , No. 14-3198, 2014 WL 6676728, at *6 (E.D. Pa. Nov. 25, 2014) (finding that the inclusion of a deadline by which the plaintiff had to send in payments did not create a false sense of urgency that the plaintiff would forego any opportunity to settle if he missed the deadline, but instead, demonstrated the offer was not being held open indefinitely); Burgess v. Portfolio Recovery Associates, LLC , No. 16-1463, 2017 WL 2471802, *3-4 (C.D. Cal. Mar. 23, 2017) (finding a collection letter stating "we are not obligated to renew this offer" with a stated deadline to accept the offers to resolve the debt did not create a sense of urgency).

However, the LL1 Letter could also be viewed as a threat of suit or imminent suit. Despite the conditional language, a reasonable juror could read the phrases "potential litigation" and "we are not obligated to renew this offer" in the LL1 Letter as intimating a lawsuit will follow immediately after the deadline articulated in the letter. See Brown , 464 F.3d at 454-55 (clarifying that the use of conditional language does not insulate a debt collector from liability); Gonzales , 660 F.3d at 1062-63 ("Conditional language, particularly in the absence of any language clarifying or explaining the conditions, does not insulate a debt collector form liability); Leblanc , 601 F.3d at 1196 (rejecting a debt collector's reliance on the use of conditional language "in an effort to safeguard the letter from being construed as 'threatening' "). Although the LL1 Letter includes the safe harbor language of "[w]e are not obligated to renew this offer," much like the safe harbor language in Burgess , the LL1 Letter also references "potential legal action" on two separate occasions, which contradicts the safe harbor language. (ECF No. 50-7.) Notably, it references "potential legal action" after listing the three settlement options and under the list of reasons why one should settle the account. ( Id. ) Therefore, a reasonable juror applying the "least sophisticated debtor" standard could find that no more settlement offers will follow, but instead a lawsuit will be initiated at the conclusion of the deadlines articulated in the LL1 Letter.

The LL1 Letter also contains more forceful litigation language:

(ECF No. 50-7.) This portion of the letter can support a reasonable inference that PRA is threatening Plaintiffs with immediate legal action. Lastly, although not dispositive, the letter was also sent from PRA's Litigation Department. Therefore, the issue of whether the LL1 Letter threatened litigation or was simply informative of a settlement is a jury question.

The Brown decision is in line with this decision. There, the Third Circuit concluded "the least sophisticated debtor might get the impression that litigation or referral to a [ ] lawyer would be imminent if he or she did not respond within five days" and that such a reading would not be "bizarre or idiosyncratic." Brown , 464 F.3d at 455. Therefore, the court reversed and remanded the matter to determine if such a reading of the letter was "reasonable" in light of the circumstances of that case. Id. The Third Circuit further determined that if such an interpretation was reasonable and the debt collector did not litigate or refer debts to an attorney, then one could find the letter was deceptive or misleading. Id. Here, because the parties disagree over what inferences can reasonably be drawn from the LL1 Letter, more specifically, whether it is in any way threatening imminent or immediate litigation, the issue shall be decided by a jury.

While the facts of the Walters decision are similar, that case is nonetheless distinguishable.

In Walters , the court found the first and second letters threatened that the debt collector would forward the account to an attorney office, and that the debt collector intended to and ultimately did transfer the matter to an attorney's office. Walters , 2011 U.S. Dist. LEXIS 41075, *24-28. Here, however, as stated, the Court finds that determining whether PRA's LL1 Letter could reasonably be perceived as a "threat to take legal action" under the "least sophisticated standard" is an issue for the jury to determine because reasonable jurors applying the "least sophisticated debtor" standard could disagree as to the inferences to be drawn from PRA's LL1 Letter to the Plaintiffs. Moreover, PRA did not intend to sue Plaintiffs at the time it sent them the LL1 Letter.

In the alternative, PRA argues:

[e]ven assuming, arguendo, the settlement offers in the Collection Letters could be construed as a threat to litigate, despite their plain language, the problem with Plaintiffs' approach is PRA actually did sue [ ] Pollak, and had begun the process to sue [ ] Beneli but removed his account from the litigation process after he filed a belated dispute of his account.

(ECF No. 56 at 7.) However, this argument fails because PRA did not intend to sue Plaintiffs at the time it issued the LL1 Letter. Nance , 2000 WL 1700156, at *2 ("The fact that [the defendant] did in fact sue some debtors ... , though relevant, is not dispositive. The issue is whether the threat of imminent litigation was true when made."); see Newman , 912 F.Supp. at 1380 n.38 ("The fact that [a defendant] did bring suit against [a plaintiff] after this lawsuit was filed does not speak to his state of mind or his ability to sue at the time the letter was sent.").

In Nance , the debt collector argued the letters' indication that he had been authorized to file suit was not a violation of the FDCPA because it was true. Nance , 2000 WL 1700156, at *2. The court denied the debt collector's motion for summary judgment, stating:

Even if so, this would not necessarily carry the day for [the debt collector], for the letters do not just say he was authorized to sue; they indicate that a suit is imminent. Falsely threatening imminent litigation when the decision whether to sue has not been made violates the FDCPA. The fact that [the debt collector] did in fact sue some debtors (including [the plaintiff] ), though relevant, is not dispositive. The issue is whether the threat of imminent litigation was true when made.

Id. (emphasis added) (internal citations omitted). In that case, the debt collector stated he had verbal authorization to file suit where necessary, however, his contract with one of the creditors he represented in writing the letters, required express written authorization before he could file suit. Id. Because there were material issues of fact as to whether the creditor needed express written authorization, the court denied the debt collector's motion for summary judgment. Id.

In Newman , the court found the letters sent by the defendants contained a threat of legal action because the letters

were on stationary [sic] inscribed with its in-house counsel's name and announced that unpaid accounts would be turned over to outside counsel which might result in "damages and court costs." [One of the defendant's] letter to plaintiff [ ] announced that she had to pay within 10 days "to avoid [a] lawsuit." Finally, [another defendant's] letters stated "[o]ur client had asked us to send you a DRAFT copy of the law suit we prepared against you[,]" and included a sample complaint with defendant attorney Sweat's signature block at the bottom of the page.

Newman , 912 F.Supp. at 1379 (internal citations omitted). Moreover, the court further found many of the defendants were incapable of filing suit at the time they mailed the letters or did not intend to file suit at that time. Id. at 1380. Many of the letters were signed by non-attorneys, who as a result were not in a position to file suit "NOW." Id. Other letters were mailed by defendants who had no intention to personally file suit. Id. Therefore, the court found the defendants violated § 1692e(5). Id. at 1381.

In Reed v. Bailey , No. 88-5297, 1988 U.S. Dist. LEXIS 19456 (N.D. Ala. Aug. 3, 1998), the defendants mailed two collection letters to the plaintiff. The first collection letter

began with references to "Carl Wayne Myers, D.D.S., P.A.," and to an "amount" of $75.00. The body of the letter advised [the] plaintiff [ ] that the matter of Myers v. Reed had been placed with [the] defendants for immediate legal action. [The] plaintiff [ ] was told that she had five days to contact [the] defendants' office and make "satisfactory arrangements for the liquidation of the claim." The letter further informed [the] plaintiff that should she fail to contact the office within five days, defendants would take immediate legal action to protect their client's interests. [The] [p]laintiff was told that her obligation "... beats court costs, some of which can be avoided if you act immediately." The letter was typed on the firm's stationery, clearly identifying defendants as attorneys. The bottom of the letter contained a boxed-in notice directing [the] plaintiff to make payments to the attorneys' office.

Id. at 2-3. On July 21, 1987, the defendants mailed the second letter, which was also typed on firm stationery, referred to Dr. Myers and the $75.00 debt, and contained the boxed-in notice directing the plaintiff to make payments to the attorneys. Id. at 3. However, this letter also contained a sentence stating, "Suit will be filed within 48 hours if you have not taken care of this account." Id. On July 29, 1987, the defendants filed suit against the plaintiff. Id. The plaintiff then filed suit alleging the defendants violated several provisions of the FDCPA. Id. at 4. In part, the plaintiff argued the defendants violated § 1692e(5) by threatening to take legal action within 48 hours of the July 21st letter. Id. at 7-8.

The court found the evidence clearly demonstrated the defendants' intent to take the legal action threatened. The court concluded:

Admittedly the July 21st letter threatened suit in 48 hours and said suit was not filed until July 29th, but the fact remains that defendants did file suit and relatively soon after the above letter was sent. The threat to file suit was in actuality a threat to institute suit "promptly." Surely Congress did not intend to base FDCPA violations on a calculation of hours and days. Given the fact that defendants followed through with the legal action proposed ad did so within a reasonable time, this court concludes that they did "intend" to take the prompt legal action referred to in the letter; therefore there is no violation of § 1692e(5).

Id. at 8-9.

Here, much like in Nance and Newman , not only did PRA not intend to file suit at the time it sent the LL1 Letter, but it was not authorized to file suit at such time. The undisputed evidence demonstrates that if PRA's debtors do not respond to the LL1 Letter, PRA's Litigation Department automatically seconds the LL2 Letter. (ECF No. 50-2 ¶ 14.) The LL2 Letter is always sent prior to initiating a lawsuit if the debtor failed to respond to the LL1 letter, dispute the amount, or make any payment. (See ECF No. 52-9 at 43-46.) Only if the LL2 Letter goes unanswered is the account referred to an attorney, who, for the first time, reviews the file prior to initiating a lawsuit. (ECF No. 50-2 ¶ 16 and ECF No. 52-2 ¶ 20.) Thereafter, a reviewing attorney determines if the account is appropriate for litigation, and either an attorney employed by PRA or external counsel hired by PRA will file suit. (ECF No. 50-2 ¶ 18.) Because PRA intended to mail a LL2 Letter prior to commencing a lawsuit and because no attorney reviewed Plaintiffs' account prior to mailing the LL1 letter, PRA did not intend to and could not file suit at the time it mailed the LL1 Letter. (ECF No. 50-2 ¶¶ 24, 51 and ECF No. 52-2 ¶ 19.) Therefore, the fact that PRA did eventually file suit against Pollak and prepared to initiate suit against Beneli is inapposite. Contrary to PRA's argument, this case is unlike Reed because, there, the court found the defendants intended to take the legal action threatened at the time they sent the July 21st letter. Reed , 1988 U.S. Dist. LEXIS 19456, at *8-9. PRA had no such intention here when the LL1 Letter was filed.

Accordingly, Plaintiffs' and PRA's motions for summary judgment are DENIED as to the issue of whether the LL1 Letter violated the § 1692e(5) by threatening legal action or immediate legal action they did not intend to take. However, the Court finds PRA did not intend to and was not authorized to file a lawsuit at the time it sent the LL1 Letter. Therefore, if the jury determines PRA threatened any legal action, it must find PRA violated § 1692e(5).

Because § 1692e(10)"is a catchall-type provision prohibiting '[t]he use of any false representation or deceptive means to collect ... any debt,' " Rosenau v. Unifund Corp. , 539 F.3d 218, 224 (3d Cir. 2008), and Plaintiffs' § 1692e(10) claim is premised on the same language or theories as the § 1692e(5) claim, the analysis of the § 1692e(5) is dispositive. Grubb v. Green Tree Servicing, LLC , No. 13-07421, 2014 WL 3696126, at *11 (D.N.J. July 24, 2014) ; see Caprio v. Healthcare Revenue Recovery Grp., LLC , 709 F.3d 142, 155 (3d Cir. 2013) ("Because we have concluded that the District Court committed reversible error by granting judgment on the pleadings as to the § 1692g claim, we must reach the same conclusion with respect to the claim brought under § 1692e(10)."); Vasquez v. Gertler & Gertler, Ltd. , 987 F.Supp. 652, 659 (N.D. Ill. 1997) (wholly resting its finding that defendant did not violate § 1692e on its finding that defendant did not violate § 1692g); Pipiles v. Credit Bureau of Lockport, Inc. , 886 F.2d 22, 25-26 (2d Cir. 1989) (holding that the "the vagueness of the language" in a notice suggested defendant would take actions it did not intend to take and therefore violated both §§ 1692e(5) and (10) ). Accordingly, Plaintiffs' and PRA's motions for summary judgment are DENIED as to the issue of whether the LL1 Letter violated § 1692e(10) by threatening legal action. However, the Court finds PRA did not intend to and was not authorized to file a lawsuit at the time it sent the LL1 Letter. Therefore, if the jury determines PRA threatened any legal action in their LL1 Letter in violation of § 1692e(5), it must find PRA also violated § 1692e(10). Grubb , 2014 WL 3696126, at *11 (concluding that since the Court found Green Tree failed to satisfy the § 1692g requirements, the May 1 Letter, as alleged, also would be considered "deceptive" in violation of § 1692e(10) ).

Bicking v. Law Offices of Rubenstein and Cogan , 783 F.Supp.2d 841, 845 (E.D. Va. 2011) (concluding that because defendant failed to satisfy § 1692g(a)(4) and (5) requirements, the alleged violations of § 1692g also state a claim under § 1692e(10) ).

D. Whether the LL1 Letter violates § 1692e(10) by Setting a 30-day Deadline to Respond

Plaintiffs argue the LL1 Letter violated the FDCPA by setting non-existent response deadlines. (ECF No. 52-1 at 8.) Specifically, Plaintiffs contend, "In stating that the Plaintiffs could avoid potential legal action if they responded to [PRA] within the arbitrarily set deadline, [PRA] attempted to instill a false sense of urgency in the Plaintiffs, along with the implicit understanding that the Plaintiff[s] may be sued if they did not timely respond." (Id. at 9.) PRA argues the response deadlines in the LL1 Letter were not misleading and did not create a false sense of urgency. (ECF No. 50-1 at 17.) Specifically, PRA argues that where "a collection letter indicates that the terms of the particular offer may not be renewed after the deadline-e.g., by including the language, 'We are not obligated to renew this offer'-no false sense of urgency under the FDCPA is created." (Id. at 18.)

Courts have established that a response deadline violates the FDCPA where it appears the offer is a " 'one-time, take-it-or-leave-it offer', when in fact the debt holder is prepared to make other offers after the expiration date." DeGeorge v. Fin. Recovery Serv., Inc. , No. 11-04288, 2012 WL 4473229, at *6 (E.D. Pa. Sept. 28, 2012). However, courts have found that if a collection letter contains the language, "[w]e are not obligated to renew this offer", it does not violate the FDCPA, so long as the rest of the language in the collection letter does not contradict that safe harbor language. Id. at *6 (including the safe harbor language may ensure the consumer will not perceive the letters as one-time offers); see Evory v. RJM Acquisitions Funding L.L.C. , 505 F.3d 769, 775 (7th Cir. 2007) ; see also Kryluk , 2014 WL 6676728, at *6 (finding that if the language in the collection letter at issue contradicts the safe harbor language it violates the FDCPA).

Here, the LL1 Letter states, "We are not obligated to renew this offer." However, while the safe harbor language may ensure that a consumer will not perceive an offer as a one-time offer, the language in the LL1 Letter cannot "be contradictory to the safe harbor language." Kryluk , 2014 WL 6676728, at *6. Here, as set forth earlier in this opinion, see Section II(C), supra , a reasonable juror applying the "least sophisticated debtor" standard may find the LL1 Letter threated immediate or imminent litigation, which by default would render it contradictory to the safe harbor language because it implies Plaintiffs would forego any opportunity to settle if they missed the deadline and were sued immediately. Therefore, because the Court has denied Plaintiffs' and PRA's motions as to the issue of whether the LL1 Letter threatens potential litigation or immediate legal action, Plaintiffs' and PRA's motions for summary judgment as to whether the LL1 Letter violates § 1692e(10) by setting a 30-day deadline to respond is also DENIED .

E. Whether PRA Violated § 1692e(10) by Stating the Account was Transferred to the Litigation Department

In their Amended Complaint, Plaintiffs argue PRA "further violated [§ 16923(10) ] by falsely implying the 'price of poker' had gone up because the account was transferred to a litigation department, when in fact the status of the account was no different."

(ECF No. 34 ¶ 86.) PRA argues this argument fails because the accounts were transferred to PRA's Litigation Department and the status of the accounts did change. (ECF No. 50-1 at 21.) Plaintiffs do not directly respond to this argument.

Section 1692e(10) prohibits "the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." "This subsection is a catchall-type provision prohibiting [t]he use of any false representation or deceptive means to collect ... any debt." Rosenau , 539 F.3d at 224. A letter is deceptive when it can reasonably be read to have two or more meanings, one of which is inaccurate or contradictory to another requirement. Wilson , 225 F.3d at 354.

The Court finds a reasonable juror applying the "least-sophisticated debtor standard" standard could not find the statements in the LL1 Letter stating, "Account Transferred to Litigation Department," and "Your account has been transferred to the Litigation Department," violate § 16923(10) as a matter of law. Indeed, Plaintiffs' accounts were transferred to PRA's Litigation Department, and the status of their accounts did change. (ECF No. 50-2 ¶¶ 22, 49.) The record demonstrates that, after PRA purchases the debt, it attempts to recover the debt through various processes and procedures, which include making telephone calls and sending collection letters. (Id. ¶ 2.) These initial collection letters do not include language regarding potential litigation. (Id. ¶ 3 and ECF No. 50-4 ¶ 6.) However, if these collection procedures are unsuccessful, PRA evaluates the individual accounts to determine whether they are appropriate for potential litigation and to be sent to the Litigation Department, where a separate