UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2020

(Argued: January 28, 2021 Decided: June 4, 2021)

No. 20-1134

––––––––––––––––––––––––––––––––––––

CRISTIAN D. CORTEZ

Plaintiff-Appellee,

v.

FORSTER & GARBUS, LLP

Defendant-Appellant.

–––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, CABRANES, and LYNCH, Circuit Judges.

In Avila v. Riexinger & Associates, LLC, 817 F.3d 72, 76 (2d Cir. 2016), we held that the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e, requires “debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees.” This appeal requires us to clarify whether Avila’s disclosure requirement applies to collection notices that extend offers to settle outstanding debt. We hold that it does not. Accordingly, the judgment of the United States District Court for the Eastern District of New York is REVERSED.

1 FOR PLAINTIFF-APPELLEE: DAVID M. BARSHAY, Craig B. Sanders, on the brief, Barshay Sanders PLLC, Garden City, New York, for Cristian D. Cortez. FOR DEFENDANT-APPELLANT: ROBERT L. ARLEO, New York, New York, for Forster & Garbus, LLP. DEBRA ANN LIVINGSTON, Chief Judge:

The Fair Debt Collection Practices Act (“FDCPA”) prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. In Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2d Cir. 2016), we held this provision to require “debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees.” Id. at 76. This appeal requires us to clarify whether this disclosure requirement applies to collection notices that extend offers to settle outstanding debt. We hold that it does not. Consequently, we REVERSE and REMAND with directions to enter summary judgment in favor of Defendant Forster & Garbus, LLP.

BACKGROUND

Plaintiff Cristian D. Cortez incurred credit card debt to Discover Bank. Discover Bank placed Cortez’s debt with Forster & Garbus for collection. In

2 2011, Forster & Garbus filed a collection action in New York state court and obtained a default judgment. Over the years, Forster & Garbus mailed Cortez a number of collection notices.

In one such notice dated February 2, 2017, Forster & Garbus indicated that Cortez’s debt balance at that time was $13,457.65 and stated in relevant part:

This office has been authorized to advise you that a settlement of the above account can be arranged. You are being offered a substantial discount off the current balance due. You may choose one of the three payment options as follows:

A. One payment of $5,383.06, which we shall expect by February 24, 2017.

B. Two payments of $3,364.42 each, totaling $6,728.84, which we shall expect by February 24, 2017, and March 24, 2017.

C. Three payments of $2,691.53 each, totaling $8,074.59, which we shall expect by February 24, 2017, March 24, 2017, and April 24, 2017.

Please note that we are not obligated to repeat this offer.