Full opinion text
OPINION MURRAY M. SCHWARTZ, Senior District Judge. This action is two consolidated cases filed by plaintiff Eric Games against the United States Department of Education (“ED”) and United Student Aid Funds, Inc. (“USA Funds”), a guarantee agency participating in the federal Guaranteed Student Loan Program (also known as the Robert T. Stafford Student Loan Program). In Civil Action No. 88-516, Games alleges both ED and USA Funds committed various procedural due process violations in connection with the involuntary interception and application of his 1987 federal income tax refund towards repayment of his federally guaranteed student loan. Games has moved for summary judgment on his claim. Both defendants have also moved for summary judgment in Civil Action No. 88-516. Civil Action No. 88-551 is a suit by Games against defendant USA Funds for alleged violations of the Federal Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 et seq. Games has moved for partial summary judgment on the merits of his claim. USA Funds has moved for summary judgment in its favor. USA Funds has also filed a counterclaim against Games seeking the outstanding balance of his student loan, interest, costs and attorneys’ fees. USA Funds has moved for summary judgment on its counterclaim. The two cases and the counterclaim were consolidated for all purposes. Stipulated Order of Consolidation (Dkt. 28). The court has jurisdiction pursuant to 28 U.S. C.A. § 1331. Extensive briefing was filed by the parties, and the court heard oral argument on all motions on March 15,1990. The court will consider the briefing and evidence submitted by all parties on the various summary judgment motions to be a single summary judgment record. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered forthwith 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 judgment as a matter of law.” “The filing of cross-motions for summary judgment does not require the Court to grant summary judgment for either party.” Krupa v. New Castle County, 732 F.Supp. 497, 512-13 (D.Del.1990) (quoting Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968)). This is because each party may base its motion on different legal theories involving different material facts. Id., 732 F.Supp. at 513. Further, different reasonable inferences may be drawn from the same facts. When there are no issues of fact and no conflicting inferences, the court may render summary judgment as a matter of law. A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A dispute over facts is “material” if, under the substantive law, it would affect the outcome of the suit. Id. at 248, 106 S.Ct. at 2510. A factual dispute is “genuine” if a reasonable jury could return a verdict for the non-mov-ant. Id. Absent a genuine issue of material fact, summary judgment will be entered “against a party who failed 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The same burdens exist on cross-motions for summary judgment. Peters Tp. School Dist. v. Hartford Acc. & Indem., 833 F.2d 32, 34 (3d Cir.1987). The “very mission” of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Fed.R. Civ.P. 56 advisory committee note to the 1963 Amendment. If wisely applied, the summary judgment procedure will eliminate useless trials. 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice § 56.02[1] (1988). However, summary judgment is not a substitute for trial and should not be used as a shortcut to avoid trial when a genuine issue of material fact remains in dispute. FACTS The basic factual background of this case is set forth here. Other facts surrounding plaintiff Games’ student loan will be discussed in greater detail where relevant. Plaintiff Games is the recipient of a federally guaranteed student loan under the Robert T. Stafford Student Loan Program. Games applied for a loan in January 1985, Appendix to USA Funds’ Opening Brief at A-l-3 (Dkt. 52) (hereinafter cited as “Dkt. 52 at A-_”), and received the loan from Wilmington Trust Company (the “lender”) in February 1985 to attend Goldey Beacom College. The loan was guaranteed by defendant USA Funds, a private, not-for-profit corporation which operates as a guarantee agency pursuant to the Higher Education Act, 20 U.S.C.A. §§ 1071 et seq. Under the terms of the loan, Games was required to begin repayment of the principal six months after the date on which he ceased to be enrolled in college on at least a half-time basis. Promissory Note and Notice of Loan Guarantee and Disclosure Statement, Dkt. 52 at A-2-3. Games’ six-month grace period began on May 31, 1985, when plaintiff ceased enrollment at Goldey Beacom College on even a half-time basis. Notice from Goldey Beacom College to Wilmington Trust Co. (Oct. 24, 1985), Appendix to Dept. of Education’s Opening Brief in C.A. No. 88-516 at A-14 (Dkt. 48A) (hereinafter “Dkt. 48A at A-_”). Therefore, he should have begun repayment no later than December 1, 1985. Games failed to make any payments. Plaintiff claims he never received any notices from Wilmington Trust Co. Appendix to Plaintiff’s Briefs at A-212 (Dkt. 60) (hereinafter “Dkt. 60 at A-_”) (deposition of Eric Games) (“Q. Did you receive a notice from Wilmington Trust with regard to repayment of your student loan? A. No, I did not.”). The lender, however, asserts that at least four notices were sent. ED entered copies of four alleged notices into the summary judgment record. Dkt. 48A at A-8-12. However, defendants failed to offer any proof that the notices were in fact mailed. Wilmington Trust declared the loan in default on May 15, 1986. See Notice of Default, Dkt. 48A at A-7; Letter from Noel C. Burnham, Vice President, Wilmington Trust Co. to Eric Games, Dkt. 60 at A-468. Pursuant to its guarantee obligation, USA Funds paid the defaulted loan ($2615.07) on June 30, 1986, and Wilmington Trust transferred title to the loan to USA Funds. Dkt. 48A at A-l. USA Funds was reimbursed by the ED under its reinsurance agreement with ED. Opening Brief of the Department of Education at 10 (Dkt. 48) (hereinafter “Dkt. 48 at_”); Dkt. 48A at A-l. In accordance with its contractual obligations with ED, USA Funds conditionally assigned the loan to ED on October 2, 1987. Dkt. 60 at A-45. Also as part of its contractual arrangements with ED, USA Funds generated and sent to Games on USA Funds’ letterhead the following form letter (“65-day letter”) provided by ED dated October 1, 1987: The U.S. Department of Education (ED) holds a defaulted student loan for which you are responsible. During 1986 and 1987, the IRS collected many ED student loan debts by deducting the amount of the debt from income tax refunds to which debtors were entitled. The law does not authorize the IRS to deduct student loan debts from refunds during 1988; however, if a new law is enacted to authorize the IRS to deduct debts from refunds in 1988, ED intends to collect student loan debts again in 1988 by deductions from tax refunds. ED has authorized us to notify you that, if the law is enacted to authorize collection from refunds in 1988, ED will refer your student loan debt to the IRS unless you pay this debt in full, or make satisfactory arrangements to repay it. The IRS will deduct the amount of the debt, plus a servicing fee, from any income tax refund to which you may be entitled during 1988. If you file a joint return, IRS will notify your spouse at the time it makes this deduction of the steps to take to protect the spouse’s share of the refund. ED has authorized us to accept payment on this debt. To pay this debt in full, send a check or money order to the agency(s) listed below. You can object to this collection action if you believe that this debt is not past-due or not legally enforceable. ED has authorized us to make your records regarding the debt available, to accept repayment agreements, and to review your debt. If we review your debt and your are dissatisfied with our decision, you may then request a review by an ED official. If you want to inspect records, to enter into a repayment agreement, or to receive a review of your objections to collection of this debt, you must make your request according to ED rules. A copy of these rules is enclosed with this notice. ED rules require that you request a review within 65 days of the date printed on this letter. Your request may be disregarded if you do not file your requests before the deadlines in these rules, or if your requests do not contain the information and documents that the rules require. All requests must be sent to the address listed below. Exh. A, Amended Complaint (Dkt. 40) (hereinafter referred to as the “65-day letter”). The notice listed a collection agency, Diversified Collection Services (“Diversified”), as the contact. Attached to the notice was a copy of the relevant regulations regarding the tax refund intercept program for that year, 51 Fed.Reg. 24099-24102 (1986) (codified at 34 C.F.R. part 30). Games states he did not receive this notice until December 1987. Affidavit of Eric E. Games at H 37, Dkt. 60 at 457. Games through his attorney sent a letter dated January 8, 1988 to Diversified requesting documentation and an oral hearing regarding his objections to interception of his tax refund. Dkt. 52 at A-13-15. Diversified belatedly responded to this letter, sending the requested documents by letter dated March 30, 1988. Dkt. 60 at A-448. Diversified apparently treated the letter from Games’ attorney as a request for documents only and failed to forward Games’ request for a review to USA Funds. Consequently, no review in connection with Games’ response to the 65-day letter was ever conducted. USA Funds sent Games a second notice dated January 27, 1988. This notice stated: The U.S. Department of Education has identified you as a current or former U.S. government employee who is in default on a student loan held by United Student Aid Funds, Inc. United Student Aid Funds, Inc. and its collection agents have made numerous attempts to contact you and establish satisfactory repayment arrangements, but you have continued to ignore your responsibility to repay this debt. This notice represents your last opportunity to make payment in full or satisfactory arrangements to repay this debt. You have 60 days from the date of this letter to comply. Should you fail to comply, we are prepared to take all necessary actions to collect your account. The Department of Education has the authority to turn over financial information regarding your account to your employing agency for offset of your salary at the rate of 15 percent of your disposable pay per pay period until the debt is satisfied. In order to avoid this action by the U.S. Department of Education, either: (1) contact this office at the telephone number listed in the upper portion of this notice to make satisfactory repayment arrangements; or (2) send payment in full to the address listed in the upper portion of this notice. Your check must reflect your full name and social security number in order to be properly credited to your account. Your payment must arrive at that address within 60 days from the date of this notice. As I am sure your realize, it would be advantageous for you to take the necessary steps to avoid salary offset. Exh. B of the Amended Complaint (Dkt. 40) (hereinafter referred to as the “salary offset notice”). The notice listed USA Funds’ address and phone number as the contact. On May 30, 1988 the Internal Revenue Service notified Games that his 1987 tax refund, amounting to $604.16 had been intercepted and applied toward repayment of his student loan. Dkt. 60 at A-12. Games filed Civil Action No. 88-516 on September 16, 1988. (Dkt. 1). THE DUE PROCESS CLAIM Games alleges that both the 65-day letter and the failure of the defendants to provide him with a hearing prior to the interception of his tax refund violated his procedural due process rights under the fifth amendment of the United States Constitution. He requests declaratory relief, injunctive relief prohibiting ED from accepting or retaining Games’ 1987 income tax refund, and monetary relief in the amount of $604.12 plus interest, costs and attorneys’ fees. He also requests that the court enjoin ED from participating in the federal Tax Refund Intercept Program until its procedures are declared constitutionally adequate. For the reasons stated herein, Games’ motion for summary judgment will be denied. Defendants’ motion for summary judgment will be granted. Statutory, Regulatory and Contractual Framework Games’ 1987 tax refund was intercepted pursuant to 31 U.S.C.A. § 3720A, which provides in relevant part: (a) Any Federal agency that is owed a past-due legally enforceable debt ... by a named person shall, in accordance with regulations issued ... notify the Secretary of the Treasury of the amount of such debt. (b) No Federal agency may take action pursuant to subsection (a) with respect to any debt until such agency— (1) notifies the person incurring such debt that such agency proposes to take action pursuant to such paragraph with respect to such debt; (2) gives such person at least 60 days to present evidence that all or part of such debt is not past-due or not legally enforceable; (3) considers any evidence presented by such person and determines that an amount of such debt is past due and legally enforceable; (c) Upon receiving notice from any Federal agency that a named person owes to such agency a past-due legally enforceable debt, the Secretary of the Treasury shall determine whether any amounts as refunds of Federal taxes paid, are payable to such person. If the Secretary of the Treasury finds that any such amount is payable, he shall reduce such refunds by an amount equal to the amount of such debt, pay the amount of such reduction to such agency, and notify such agency of the individual’s home address. The regulations promulgated by IRS pursuant to section 3720A(d) provide that Federal agencies may refer debts [w]ith respect to which the agency has given the taxpayer at least 60 days to present evidence that all or part of the debt is not past-due or legally enforceable, has considered evidence presented by such taxpayer, and determined that an amount of such debt is past-due and legally enforceable; With respect to which that the agency has notified, or has made a reasonable attempt to notify, the taxpayer that— (i) The debt is past due, and (ii) Unless repaid within 60 days thereafter, will be referred to the Service for offset against any overpayment of tax.... 26 C.F.R. § 301.6402-6T(b)(4) & (6) (1987). ED also promulgated rules governing offset. ED’s rules required that: (b) The written notice informs the debtor regarding— (1) The nature and amount of the debt; (2) The Secretary’s intent to collect the debt by offset; (3) The debtor’s opportunity to— (i) Inspect and copy Department records pertaining to the debt; (ii) Obtain a review within the Department of the existence or amount of the debt; and (iii)Enter into a written agreement with the Secretary to repay the debt; (4)The date by which the debtor must request an opportunity set forth under paragraph (b)(3).... 34 C.F.R. § 30.22(b) (1987). USA Funds is a private, not-for-profit corporation which operates as a guarantee agency participating in the Stafford Student Loan Program pursuant to the Higher Education Act, 20 U.S.C.A. §§ 1071 et seq. The Guaranteed Student Loan Program (also known as the Stafford Student Loan Program or “GSL Program”) “makes low interest loans available to students to pay for their costs of attending postsecondary [sic] schools. Lenders loan their own funds and ... a guarantee agency insures against loss.” 34 C.F.R. § 682.100(a) (1984). Under the program, the Federal Government reimburses State or private non-profit guarantee agencies for all or part of insurance claims they pay to lenders. 34 C.F.R. § 682.100(a)(1) (1984). Generally, a qualified student such as Eric Games receives a loan from an ordinary lender, such as a bank (in this case, Wilmington Trust Co.) to attend an eligible institution of higher learning (here, Goldey Beacom College). The loan is insured by a State or private guarantee agency, such as USA Funds, which enters into various contractual arrangements with ED. USA Funds agreed to participate in the federal Tax Refund Intercept Program (“TRIP program”) for the 1987 tax year. Letter to Rosemary Beavers, Student Receivables Branch, ED from James C. Lintzenich, Senior Vice-President and Treasurer, USA Funds (Sept. 14, 1987), Dkt. 48A at A-42. Its participation in the program consisted of assigning to ED any defaulted loans on which ED had paid a reinsurance claim and generating a one-page form letter provided by ED (the “65-day letter”) to each debtor whose account is assigned to ED. USA Funds was authorized to resolve complaints and inquiries from debtors responding to the 65-day letter. Appendix 1, Dkt. 52 at A-46-47, A-53. The notice dated October 1, 1987 and received by Games was one of the 65-day letters generated by USA Funds at ED’s behest. After offset has occurred, ED reassigns any outstanding balance to USA Funds for further collection activity. Appendix 1, Dkt. 52 at A-50. USA Funds contracted with independent collection agencies to perform certain ministerial tasks in connection with USA Funds’ obligations under the TRIP program. Diversified was one such agency. Diversified received inquiries from borrowers who received 65-day letters, entered into repayment arrangements with borrowers, provided documentation to borrowers who so requested, and forwarded requests for review to USA Funds. Diversified did not have authority to review the loans. Dkt. 60 at A-123-125 (deposition of Kevin Tharp). Analysis When an individual alleges violation of his procedural due process rights, there are two inquiries: (i) Is a hearing required? and (ii) What kind of hearing is required? Morrisey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (“Once it is determined that due process applies, the question remains what process is due.”). Individuals are entitled to procedural due process when government decisions deprive them of life, liberty or property interests. In this case, there is no question that Games has a property interest in his tax refund, and is entitled to due process. The Court must determine the amount of process to which Games was entitled. Procedural due process means only an opportunity to be heard. The opportunity to be heard breaks down into two components, notice and a hearing: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 13, 98 S.Ct. 1554, 1562, 56 L.Ed.2d 30 (1978) (quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). The concept of due process is a flexible one, and the amount of process that is due depends upon the type and context of the deprivation alleged. Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600 (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”). 1. The 65-day Letter Plaintiff challenged the constitutional adequacy of the 65-day letter as not reasonably calculated, under all the circumstances, to apprise him of the pendency of the tax refund intercept and afford him an opportunity to present his objections because: (i) it failed to provide a list of possible defenses to the tax refund intercept; (ii) its explanation concerning the reauthori-zation of the TRIP program for 1988 was confusing and misleading; (iii) it failed to inform him that he had a right to consult counsel; and (iv) it failed to explain adequately the procedures for objecting to the intercept by attaching a copy of the relevant regulations rather than explaining them in layman’s terms. At the outset, the court has grave concerns about whether Games has standing to raise these issues. The constitutional component of standing requires a party to show that he has suffered some injury that can fairly be traced to the challenged action and is likely to be redressed by a favorable decision by the court. See, e.g., Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (“The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief”); Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Games’ loss of his tax refund is certainly a cognizable injury. However, that injury is not fairly traceable to the alleged constitutional deficiencies of the 65-day letter. For instance, Games in fact responded to the 65-day letter and objected that his debt was not past-due or legally enforceable. His sole defense to the offset was that he was improperly denied deferment causing his loan to be wrongly declared in default. Games has not suggested any defense which might have been listed by the letter on which he could have relied. Consequently, Games’ injury is not fairly traceable to the failure to list possible defenses in the 65-day letter. See Jones v. Cavazos, 889 F.2d 1043 (11th Cir.1989). Likewise, since Games responded to the 65-day letter, the language in the letter addressing the probability that TRIP would be reauthorized for the 1987 tax year did not mislead Games into sleeping on his rights. Further, Games contacted his attorney upon receipt of the 65-day letter. Consequently, the letter did not mislead him into failing to consult legal counsel. Finally, Games objected to the intercept and sought review in the appropriate manner. If Games was wrongfully deprived of his tax refund, his injury is the result of the failure of defendants to provide him with a hearing, not from any alleged deficiency in the 65-day letter. It follows that his alleged injury is not fairly traceable to the contents or omissions of the letter, and Games lacks standing to challenge the constitutional sufficiency of the 65-day letter. In the alternative, the court holds the notice provided by the 65-day letter is not constitutionally deficient. Games’ first complaint about the letter is that it denies him due process by failing to provide a list of possible defenses to offset. The Third Circuit Court of Appeals recently decided the same issue with regard to TRIP notices to recover delinquent child support payments. Anderson v. White, 888 F.2d 985 (3d Cir.1989). In Anderson, the Third Circuit considered the adequacy of the notice and hearing procedures followed in Pennsylvania when the IRS intercepts the tax refunds of obligated parents who are delinquent in child support payments. The child support TRIP program is administered by state and local government units in cooperation with the IRS. The states apply the intercepted refund money against welfare benefits previously paid to delinquents’ children or they distribute the proceeds to the persons with lawful custody of the children. Id. at 988. The governing federal statute requires that prior to offset the obligated parent must be “instruct[ed] ... of the steps which may be taken to contest the State’s determination that past-due support is owed or the amount of past-due support.” 42 U.S.C.A. § 664(a)(3)(A) (quoted at Anderson, 888 F.2d at 988 n. 3). The notice sent by the Pennsylvania authorities did not provide a list of possible defenses, nor did the applicable statutes and regulations require such a list. Anderson, 888 F.2d at 989. Plaintiffs in Anderson contended that Due Process requires more than the procedures required by the statutes and regulations. The court disagreed. Noting that “[t]he Supreme Court has never required that pre-hearing notices contain a list of potential defenses or explain available hearing procedures in intricate detail in order to meet due process standards,” the appellate court held that the failure to provide a list of possible defenses did not violate the due process rights of obligated parents. Id. at 992. The parties in the case at bar submitted supplemental briefing addressing the appellate court’s decision in Anderson. Plaintiff Games argues that this case is distinguishable from Anderson and that the Third Circuit’s decision in Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980), should control. In the Finberg case, the appellate court held that the failure to list possible defenses in a garnishment notice violated due process. Finberg involved post-judgment garnishment of a debtor’s bank accounts. The garnishment notice failed to inform the garnishee that federal law exempted Social Security benefits and that Pennsylvania law exempted $300 from garnishment. Nor was the debtor informed of procedures available for obtaining release of her exempt property. Id. at 52. Quoting the oft-cited language of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), that due process requires notice to be “reasonably calculated, under all circumstances, to ... afford [interested parties] an opportunity to present their objections,” the court noted that “[k]nowledge of these exemptions is not widespread, and a judgment debtor may not be able to consult a lawyer before the freeze on the bank account begins to cause serious hardships.” Finberg, 634 F.2d at 61-62. The court also stated that conveying the additional information would not be a great burden on the state. Id. The court concluded that the post-judgment garnishment notice must include information regarding exempted property and procedures to contest garnishment in order to be “reasonably calculated under all circumstances to ... afford an opportunity to present ... objections.” The court in Anderson distinguished Finberg, reasoning: These [obligated parents] argue the TRIP pre-offset notice should have advised them of the defenses of incorrect identification of the person owing child support, absence of any court order directing payment of child support and inaccuracy in the amount of child support past due. Basically, the defenses boil down to “I don’t owe child support or I don’t owe that much”.... Those defenses should be evident to the recipient of a TRIP notice. They are thus unlike the exemptions from garnishment that we considered in Finberg. Anderson, 888 F.2d at 993 (footnote detailing defenses in Finberg omitted). Games argues the defenses to offset of student loans are more like the exemptions to garnishment in Finberg than the defenses to child support obligations in Anderson and should thus be listed in the 65-day letter. However, the defenses cited by Games essentially boil down to the single defense stated in the 65-day letter: namely, that the debt is not a past-due, legally enforceable debt. Finberg and Anderson both turned on the likelihood that the debt- or would be aware of possible defenses to collection of the debt. Student loan debtors such as Games sign a promissory note setting forth the conditions of the loan. This promissory note includes information as to the date the note comes due, default and deferment. See Dkt. 52 at A-2. These student borrowers are on notice from the outset of conditions that would prevent the loan from becoming a past-due, legally enforceable debt. Student loan debtors are very likely to be aware of whether the debt is past-due and legally enforceable. The defenses in this case would certainly be more evident to student debtors than the exemptions in Finberg were to the garnishee. I conclude that considerations of due process do not require that the 65-day letter contain a non-exhaustive list of defenses. Games next complains the 65-day letter was confusing and misleading in two ways. First, he asserts the notice’s statement that the TRIP had not yet been authorized for 1988 was confusing because it made him unsure what action, if any, would or could be taken against him and minimized the need to respond. Second, Games complains the notice was confusing because it failed to state that he could retain an attorney and that he could present documentary evidence. Games’ own actions contradict his contentions. The language in the notice addressing the probability that TRIP would be reauthorized for 1988 did not mislead Games into sleeping on his rights. By plaintiffs own account, he responded to the 65-day letter within a month of receiving it. Furthermore, Games’ first impulse was to contact his attorney. Consequently, the letter did not mislead him into failing to consult legal counsel. Neither the language concerning reau-thorization of TRIP nor the failure to inform borrowers of their right to consult an attorney constitutes a constitutional violation. In determining whether a violation of procedural due process has occurred, the court must make a case-by-case analysis. In the landmark case Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the United States Supreme Court set forth the standard which the lower courts follow in analyzing alleged due process violations: [Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Games alleges the language in the 65-day letter was confusing because it indicated merely the possibility that offset might occur. He complains that he never received actual notice that the TRIP program was in fact reauthorized and that interception would occur. ED explained in its brief that the statements concerning the probability the TRIP program would be reauthorized resulted from a necessary balancing of the government’s interest in continuing the offset program with the debtors’ interest in a full period for notice and review. Dkt. 48 at 38. IRS and ED regulations require that the pre-offset notice be sent at least 60 (IRS) or 65 (ED) days prior to referral of the debt to IRS for intercept of the debtor’s tax refund offset in order to provide debtors with adequate notice of and opportunity to respond. The only timely way to provide such notice was to send the offset notices in October, prior to reau-thorization of the TRIP program. ED argues that the language in the 65-day letter fully indicated ED’s intent to intercept borrowers’ tax refunds and clearly conveyed to the recipients the need to respond to the letter to prevent offset from occurring. A taxpayer has a property interest in his tax refund sufficient to entitle him to the protections of procedural due process before he is deprived of his refund. It follows that plaintiff satisfies the first prong of the Mathews v. Eldridge test. Plaintiff alleges as to the second prong that there is some risk of erroneous deprivation of his tax refund because the language in the 65-day letter could cause him to believe response to the letter was unnecessary. However, Games was not in fact mislead into sleeping on his rights. Games’ response to the 65-day letter is evidence that the risk of erroneous deprivation due to the allegedly misleading language of the letter is small. Under the third prong of the Mathews v. Eldridge test, the court must consider the relative cost and benefit of additional procedures. Games asserts that ED should have sent a second notice informing borrowers that reauthorization had in fact occurred. In so doing, however, ED would likely have been in violation of its own regulations requiring 65 days’ notice, since ED is required to refer to the IRS all accounts to be collected by offset in a particular year by the beginning of January. See Declaration of Jack Reynolds at ¶ 12, Dkt. 48A at 37. This would have rendered ED’s participation in TRIP for that year invalid, causing ED to forego the $115 million it collected by tax refund offset of Guaranteed Student Loan accounts in 1988. Declaration of Jack Reynolds at ¶ 9, Dkt. 48A at A-36. The burden on plaintiff Games and other debtors caused by the possibly confusing language in the notice is not so great as to justify such an expense. The Mathews v. Eldridge balance compels a finding that the language in the notice concerning reau-thorization of TRIP did not violate plaintiffs due process rights. Secondly, Games complains the 65-day letter was confusing because it failed to state that he could retain an attorney and that he could present documentary evidence. To the extent he complains that the letter failed to state that he could present documentary evidence, Games is simply incorrect. The letter and the regulations accompanying it clearly contemplated the submission of documents by debtors opposing the intercept. The failure to positively state that the debtor may retain an attorney if he/she so desires is not a due process violation. This is not a case in which the debtor was told that he was not allowed to retain an attorney to represent him in this matter, a statement which probably would be a due process violation. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Rather, the letter simply failed to inform him that he could retain an attorney. Again, Games was not mislead by the omission because he did in fact retain counsel in response to the 65-day letter. Second, the notice upheld in Anderson also failed to inform debtors that they could be represented by counsel. Although the Anderson opinion is silent on this point, the issue was in fact raised before the appellate court in Anderson. Transcript of oral argument, Games v. Cavazos, C.A. Nos. 88-516/88-551 MMS (Consolidated) at 23 (March 15, 1990) (Dkt. 88) (hereinafter “Transcript at _”). The appellate court’s approval of the notice indicates that it did not consider a statement that debtor could consult counsel to be required by due process considerations. Finally, Games argues that the 65-day letter violated his due process rights because it failed to set forth the procedures for objecting to the intercept and getting a review and because the regulations attached to the letter were confusing to lay debtors. The 65-day letter contained the following statements with regard to the possibility of contesting the intercept: You can object to this collection action if you believe that this debt is not past-due or not legally enforceable. ED has authorized us to make your records regarding the debt available, to accept repayment agreements, and to review your debt. If we review your debt and you are dissatisfied with our decision, you may then request a review by an ED official. If you want to inspect records, to enter into a repayment agreement, or to receive a review of your objections to collection of this debt, you must make your request according to ED rules. A copy of these rules is enclosed with this notice. ED rules require that you request a review within 65 days of the date printed on this letter. Your request may be disregarded if you do not file your requests before the deadlines in these rules, or if your requests do not contain the information and documents that the rules require. All requests must be sent to the address listed below. Accompanying the letter was a copy of the IRS and ED regulations detailing the procedure for obtaining review of the debt. Games complains that the regulations were “indecipherable” to laymen. He asserts the regulations were so confusing that the only information given debtors concerning review procedures was that information provided by the text of the letter quoted above. Games argues that the text of the letter was constitutionally insufficient because it did not provide enough information with respect to procedures for obtaining a review of the debt. The Third Circuit Court of Appeals’ decision in Anderson, however, indicates that the text of the 65-day letter standing alone was sufficient to inform Games of the procedure for obtaining a review. The notice in Anderson stated: You have a right to contest our determination that this amount of past-due support is owed. You may request an administrative review by contacting us no later than November 27, 1987 at the address or phone number listed above.... All requests for administrative review must be made by contacting the agency listed above. Anderson, 888 F.2d at 989. The appellate court found this notice to be constitutionally sufficient: These notices not only informed them that TRIP actions were pending and that their 1987 tax refunds could be intercepted pursuant to the program, but they also gave them timely advice that administrative review was available and how to go about getting it. The notices advised them that they had a right to seek review from [the] local agency to correct any errors in the preliminary determination that they were delinquent in meeting child support obligations and that their tax refunds were therefore subject to interception and application against their delinquencies. Since the notices also told [plaintiffs] how to contact [the local agency], they were reasonably calculated to adequately inform them of the impending TRIP actions as well as procedures for challenging them. Id. at 992. Under the reasoning in Anderson, the 65-day letter adequately informs debtors of how to go about getting a review, even accepting without deciding Games’ allegation that the accompanying regulations were indecipherable to a layman. In summary, the 65-day letter was reasonably calculated, under all the circumstances, to apprise student loan debtors of the pendency of tax refund interception and to afford them an opportunity to present their objections. I turn now to Games’ allegations concerning the adequacy of the hearing procedures themselves. 2. The Hearing Procedures Plaintiff was never granted a hearing in connection with his written response to the 65-day letter. This was apparently the result of a miscommunication between USA Funds and Diversified. Games alleges that the failure to grant him a hearing violated his due process rights. As previously stated, USA Funds employs a number of collection agencies, including Diversified, to receive responses to the 65-day letter. The collection agencies are authorized to enter into repayment agreements, to provide copies of documents requested by debtors and to forward requests for review to USA Funds. Dkt. 48 at 40-41 & n. 14. Games through his attorney sent to Diversified a letter dated January 8, 1988 (received by Diversified January 13, 1988) requesting documents and a review. Dkt 60 at A-419-421 & 442. Diversified apparently failed to forward Games’ request for a review and treated the communication as simply a request for documents. Dkt. 48 at 40-41. Plaintiff does not dispute this version of events. He concedes that the failure to grant him a pre-deprivation hearing was not intentional and resulted from negligence on the part of Diversified or USA Funds. Transcript at 6. The Supreme Court has held that deprivation of property under color of law without a hearing is not a due process violation when it occurs because of negligence. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986) (overruling Parratt to the extent that Parratt held that negligent behavior of officials can “deprive” a person of life, liberty or property within the meaning of the Due Process Clause of the fourteenth amendment). In Parratt, a prisoner’s mail order hobby kit was lost due to the negligence of prison employees. Although the Supreme Court agreed that this amounted to a deprivation of property under color of law, the Court held that it was not a due process violation: “Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure.” Id. at 543, 101 S.Ct. at 1917. Similarly, the fact that Games was not accorded a pre-deprivation review was the result of the unauthorized failure of defendants’ agent (Diversified) to follow established procedure. The Court made the same point even more strongly in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). In that case, prison officials negligently failed to take steps to protect the plaintiff, an inmate, from another inmate who had threatened him. The plaintiff was attacked and seriously injured. Although the plaintiff was deprived of a liberty interest in the right to be secure from physical harm, the court found no due process violation: “[L]ack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent.... The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials.” Id. at 347-48, 106 S.Ct. at 670 (citation omitted). In other words, the Due Process Clause does not create a constitutional cause of action for negligent acts committed under color of law. Finally, the Court went so far as to overrule part of its decision in Parratt to the extent that Parratt stood for the proposition that “mere lack of due care by a state official may ‘deprive’ an individual of life, liberty, or property_” Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). In Daniels, the Court noted that historically the guarantee of due process had been applied only to deliberate decisions by government officials to cause a deprivation of life, liberty or property, id. at 331, 106 S.Ct. at 665, and held that the Due Process Clause of the fourteenth amendment does not provide a remedy for negligent behavior by government officials, id. at 336, 106 S.Ct. at 667. The Court’s decision in Parratt was influenced in part by the availability in that case of an adequate post-deprivation remedy under state tort law. Likewise, ED and USA Funds provide a post-deprivation remedy for borrowers whose tax refunds are intercepted. Both ED and USA Funds will conduct reviews even after intercept has occurred. Declaration of Jack Reynolds at 1112, Dkt. 48A at A-38; Transcript at 34; see also Dkt. 60 at A-12 (notice from IRS informing Games that his refund had been intercepted and referring any questions or objections to ED). There is no evidence that Games sought to avail himself of this post-deprivation procedure. The fact that Games’ request for a review was not granted as a result of negligence is not in and of itself a violation of his due process rights. Games contends, however, that the use of Diversified and other collection agencies by USA Funds to receive responses to the 65-day letter is a due process violation because it is likely to lead to frequent mistakes such as the one made in his case. The court must apply the test set forth in Mathews v. Eldridge. Plaintiff’s property interest in his tax refund again satisfies the first prong of the test. As to the risk of erroneous deprivation, Games fails to point to a single instance other than his own in which one of the collection agencies failed to forward a request for a review. Transcript at 7 (“[T]his is only one case and this is the only incident that we are aware of_”). In 1988 alone, ED referred approximately 596,287 Guaranteed Student Loan accounts to IRS for intercept. Declaration of Jack Reynolds at ¶ 9, Dkt. 48A at A-36. A substantial portion of these accounts were assigned to ED from USA Funds. Transcript at 35. USA Funds is unaware of any other such failure. Tharp Affidavit at 119 (Dkt. 53). As to the second prong of the Mathews v. Eldridge balance, it appears on this record that the risk of erroneous deprivation because of the use of collection agencies to receive debtors’ requests is small. In analyzing the procedure under the third prong of the test, the court notes USA Funds’ role in the TRIP program is limited to assigning past-due accounts to ED for collection via the TRIP program, generating the 65-day letters, and conducting reviews. Requiring ED and USA Funds to negotiate repayment agreements and provide documents in addition to their current responsibilities would strain their limited resources. Games’ suggestion that USA Funds and ED eliminate use of collection agencies to perform these ministerial tasks is very burdensome relative to the minimal chance of similar miscommunica-tions. The balancing test of Mathews v. Eldridge dictates the conclusion that use of the collection agencies to receive responses to the 65-day letter is not a violation of due process. Games also seeks to challenge the procedures followed by USA Funds and ED when they conduct reviews of student loans prior to intercept. The court declines to review those procedures at this time because in so doing this court would be rendering an advisory opinion. Games never received a hearing; the procedures about which he complains were never applied to him. As previously rehearsed, the defendants’ failure to accord Games a pre-deprivation review and their use of Diversified to receive responses to the 65-day letter were not violations of Games’ due process rights. Consequently, the court will not order defendants to return Games’ intercepted tax refund and accord him a pre-deprivation review. A decision by this court concerning the procedures utilized by defendants in conducting pre-deprivation reviews would therefore serve no other function except to advise defendants as to how such reviews should be conducted. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3529.1 at 296 (2d ed. 1984) (“[A court] may refuse to give an ‘advisory opinion’ on questions rendered unnecessary by the balance of its decision.... ”); Stearns v. Johns-Manville Sales Corp., 770 F.2d 599, 601 (6th Cir.1985) (declining to construe a statute which the balance of the opinion held was not applicable to the case); Environmental Defense Fund v. Alexander, 614 F.2d 474, 480 (5th Cir.) (“If the defense [of laches] is established, the court’s musings about how the case might have been decided on the merits if timely filed and if we could grant relief would surely be the rendering of an advisory opinion in violation of the constitutional strictures.”), cert. denied, 449 U.S. 919, 101 S.Ct. 316, 66 L.Ed.2d 146 (1980). Further, Games has not yet sought a post-deprivation review. Therefore, any challenge to the procedures which might be followed by defendants in conducting such a review is not ripe for decision by the court at this time. The court “should not undertake the role of [a] helpful counsel- or ]....” 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.1 at 114 (2d ed. 1984). In order to consider the procedures that would be followed in a post-deprivation review, the court must speculate that (i) Games will seek such a review; (ii) that the procedures utilized in such a review would be the ones anticipated by Games; and (iii) that the outcome of the review would be adverse to Games. The court would be giving advice rather than deciding a concrete case or controversy. In essence, the court would be instructing USA Funds and ED on the kinds of post-deprivation review procedures they should employ. The court should not needlessly undertake to examine the constitutional sufficiency of ED and USA Funds’ review procedures, and it heeds the admonition of the Third Circuit in Anderson that “[w]e do not find persuasive the reasoning of those courts that use the Due Process Clause to establish detailed procedural requirements for agencies and officials administering TRIP.” 888 F.2d at 995. The court finds that the negligent failure on the part of USA Funds and ED to provide Games with a pre-deprivation review and the use of collection agencies such as Diversified to receive responses to the 65-day letter were not due process violations. Plaintiff’s motion for summary judgment on these issues will be denied. Defendants’ motion for summary judgment will be granted. Plaintiff’s challenge to the procedures utilized by USA Funds and ED in reviewing student loans that are set for intercept will be dismissed without prejudice for the reasons stated above. THE FDCPA CLAIM Plaintiff alleges USA Funds violated the Federal Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 et seq. (“FDCPA” or “the Act”) by sending the 65-day letter and the salary offset notice. He seeks $5000 statutory damages from USA Funds for these alleged violations. Games has moved for partial summary judgment on the issue of whether USA Funds is a debt collector subject to the FDCPA and whether USA Funds violated the Act. USA Funds has moved for summary judgment on the grounds that it is not a debt collector subject to the Act, or in the alternative, that it did not violate the Act. It has also moved for summary judgment on its counterclaim. The Federal Debt Collection Practices Act is intended “to eliminate abusive debt collection practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged....” 15 U.S.C.A. § 1692(e). The Act makes it unlawful for debt collectors to use abusive tactics while collecting debts for others. It imposes civil liability only upon “debt collectors” as defined by the Act. 15 U.S.C.A. § 1692k; In re Scrimpsher, 17 B.R. 999, 1011 (Bankr.N.D.N.Y.1982). Consequently, if USA Funds is not a “debt collector” within the definition provided by the Act, the requirements of the FDCPA are inapplicable to its actions. In order to determine whether USA Funds is a debt collector within the meaning of the FDCPA, the court must examine in greater detail the relationship between USA Funds and the Department of Education, the role USA Funds plays in the Guaranteed Student Loan Program, and USA Funds’ participation in the collection of student loans by the TRIP and federal salary offset programs. USA Funds is a private, not-for-profit corporation which operates as a guarantee agency participating in the Stafford Student Loan Program pursuant to the Higher Education Act, 20 U.S.C.A. §§ 1071 et seq. The Stafford Student Loan Program “makes low interest loans to students to pay for their costs of attending post-secondary schools. Lenders loan their own funds and ... a guarantee agency insures against loss.” 34 C.F.R. § 682.100(a) (1984). Under the program, the Federal Government reimburses State or private non-profit guarantee agencies for all or part of insurance claims they pay to lenders. 34 C.F.R. § 682.100(a)(1) (1984). Generally, a qualified student such as Eric Games receives a loan from an ordinary lender, such as a bank (in this case, Wilmington Trust Co.) to attend an eligible institution of higher learning like Goldey Beacom College. The loan is insured by a State or private guarantee agency such as USA Funds. The guarantee agency enters into various agreements with ED entitling it to certain benefits. As a guarantee agency, USA Funds has entered into numerous agreements with ED. In 1966 USA Funds entered into an agreement with ED whereby USA Funds would receive Federal “advances” to strengthen its reserve fund and better enable it to insure student loans. “Terms and Conditions Covering Advances Made Under Section 422 of the [Higher Education] Act,” Dkt. 52 at A-30-32 (hereinafter “Contract for Advances”). Also in 1966 and again in 1977, USA Funds entered into an agreement whereby ED agreed to pay to lenders a portion of the interest payments on loans insured by USA Funds. “Agreement Pursuant to Section 428(b) of the Higher Education Act of 1965 with a State or Private Non-Profit Institution or Organization for Coverage of Its Student Loan Insurance Program Under the Interest Benefit Provisions of Section 428(a) of the Act,” Dkt. 52 at A-18-21 (hereinafter “1966 Basic Agreement”); “Agreement Pursuant to Section 428(b) of the Higher Education Act of 1965, as amended, with a State or Private Non-Profit Institution or Organization for Coverage of its Student Loan Insurance Program under the Interest Benefits Provisions of Section 428(a) of the Act,” Dkt. 52 at A-22-24 (hereinafter “1977 Basic Agreement”). In 1977, USA Funds and ED also entered into a reinsurance agreement whereby ED agreed to reimburse USA Funds for 80% of the losses resulting from paying lenders’ insurance claims on defaulted student loans. “Agreement for Federal Reinsurance of Loans Pursuant to 428(c) of the Higher Education Act of 1965, As Amended,” Dkt. 52 at A-25-28 (hereinafter “Reinsurance Agreement”). A subsequent agreement increased the reinsurance amount to 100% of USA Funds’ losses. “Supplemental Guaranty Agreement for Federal Re-Insurance of Loans, Higher Education Act of 1965, As Amended,” Dkt. 52 at A-33-37 (hereinafter “Supplemental Reinsurance Agreement”). In order to receive the benefits provided by these agreements, USA Funds was obligated to satisfy certain requirements. For instance, all of the agreements require USA Funds to submit certain reports and information to ED. In addition, the 1977 Basic Agreement requires USA Funds to notify ED of the transfer of any loan note insured by USA Funds and limits the persons to whom the note may be transferred. 1977 Basic Agreement MI 3-4, Dkt. 52 at A-23. The Reinsurance Agreement and the Supplemental Reinsurance Agreement require USA Funds to assure ED with respect to claims on a reinsured loan that “(a) the terms of such loan comply with all [USA Funds’], State and Federal requirements, (b) that all reasonable efforts have been made to collect the loan, and (c) the loan is in default....” Reinsurance Agreement If 5, Dkt. 52 at A-26; see also Supplemental Reinsurance Agreement ¶ 5, Dkt. 52 at A-35. The two reinsurance agreements also require that USA Funds “establish and maintain such administrative and fiscal procedures as are necessary to assure proper and efficient administration of its Student Loan Program....” Reinsurance Agreement ¶ 4, Dkt. 52 at A-26; Supplemental Reinsurance Agreement ¶ 4, Dkt. 52 at A-35. Under the Reinsurance Agreement and the Supplemental Reinsurance Agreement, USA Funds must submit any forms or procedures developed by it for use in its Student Loan Insurance Program for ED’s approval. Reinsurance Agreement ¶ 9, Dkt. 52 at A-27; Supplemental Reinsurance Agreement K 6, Dkt. 52 at A-35. Finally, both agreements grant USA Funds authority to allow forbearance of the loan by the lender for the benefit of the student borrower. Reinsurance Agreement If 6, Dkt. 52 at 26; Supplemental Reinsurance Agreement 11 8, Dkt. 52 at A-36; 34 C.F.R. § 682.405(f)(8) (1984). The governing regulations contain further examples of the control exerted by ED over the guarantee agencies’ administration of the GSL Program. See generally 34 C.F.R. part 682 (1984). The agreements also define much of the relationship between USA Funds and the actual lenders, such as Wilmington Trust Co. For instance, USA Funds must assure ED that the terms of the loans made by the lenders comply with all relevant State and Federal requirements. Reinsurance Agreement 11 5, Dkt. 52 at A-26; Supplemental Reinsurance Agreement 11 5, Dkt. 52 at A-35. USA Funds must also assure ED that the lenders exercised due diligence in making, servicing and collecting the loans. Reinsurance Agreement 114, Dkt. 52 at A-26; Supplemental Reinsurance Agreement ¶ 4, Dkt. 52 at A-35. USA Funds might also require the lender to submit certain information to ED. 1977 Basic Agreement H 2(d), Dkt. 52 at A-23. Thus, as a guarantee agency USA Funds plays a substantial role in administering the Guaranteed Student Loan Program. However, its administration of the GSL Program may be described as “highly regulated” by ED. See State of Delaware v. Cavazos, 723 F.Supp. 234, 237 (D.Del.1989) (summarizing the administration of the GSL Program by guarantee agencies and noting that the program is “subject to extensive regulation”). USA Funds’ role in the collection of student loans through TRIP and the salary offset program is more limited. USA Funds’ participation in TRIP is delineated in a 1987 amendment to its Basic Agreements. USA Funds agreed to participate in TRIP for the 1987 tax year. Letter to Rosemary Beavers, Student Receivables Branch, ED from James C. Lintzenich, Senior Vice-President and Treasurer, USA Funds (Sept. 14, 1987), Dkt. 48A at A-42. Its participation consisted of assigning to ED any defaulted loans on which ED paid a reinsurance claim and generating a one-page form letter provided by ED (the “65-day letter”) to each debtor whose account was assigned to ED. USA Funds was also empowered to resolve complaints and inquiries from debtors responding to the 65-day letter. Appendix 1, Dkt. 52 at A-46-47, A-53. The notice dated October 1, 1987 and received by Games was a 65-day letter generated by USA Funds in connection with the amendment to its Basic Agreements. After offset occurred, ED reassigned any outstanding balance to USA Funds for further collection activity. Appendix 1, Dkt. 52 at A-50. Likewise, USA Funds’ participation in the salary offset program consisted merely of verifying that the debt is in default, generating a form letter provided by ED, and assigning the debt to ED. Letter to Guarantee Agency Directors from Richard A. Hastings, Director, Debt Collection and Management Assistance Services, ED (November 1987), Dkt. 60 at A-61. The salary offset notice received by Games dated January 27, 1988 was an ED form letter generated by USA Funds in connection with its participation in the salary offset program. The court now turns to the threshold issue of whether USA Funds was a debt collector within the meaning of the FDCPA when it generated and sent the two notices. The FDCPA defines “debt collector” generally as: (6) The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... 15 U.S.C.A. § 1692a(6). The Act also lists numerous exceptions to the general definition. See id. §§ 1692a(6)(A)~(F). USA Funds first argues it is not a debt collector as that term is generally defi