2d Cir. Says Debt Collector’s Response to Debtor’s E-mail Was Not “Initial Communication” under FDCPA Because the Response Was Not Initiated by the Debt Collector Ab Initio

In Worley v. Simon Meyrowitz & Meyrowitz, P.C., No. 23-187-CV, 2023 WL 7528560, at *2 (2d Cir. Nov. 14, 2023), the Court of Appeals for the Second Circuit affirmed dismissal of an FDCPA claim grounded in the theory that a debtor’s collector’s first communication with the debtor, in response to the debtor’s e-mail, was the “initial communication” under 1692e(11) and 1692g.

First, Worley challenges the district court’s conclusion that Meyrowitz’s April 2 Email to Worley was not an “initial communication” within the meaning of either 15 U.S.C. § 1692e(11) or 15 U.S.C. § 1692g(a), relying on Carlin v. Davidson Fink LLP, 852 F.3d 207, 211 (2d Cir. 2017), for the proposition that a communication from a debt collector sent in reply to a communication from a consumer can still sometimes be deemed an “initial communication” under the FDCPA. However, Worley’s reliance on Carlin is misplaced as she, unlike the plaintiff in Carlin, was never “prompted” by Meyrowitz to contact it regarding the debt collection. 852 F.3d at 215 (holding debt collector’s letter in response to plaintiff’s inquiry about the debt constituted an “initial communication” since plaintiff’s inquiry was prompted by the debt collector’s prior action). Here, Meyrowitz sent the April 2 Email to Worley in response to her unprompted communications first to NYCHA, and then to Meyrowitz, regarding her efforts to resolve her debt. Because the April 2 Email from Meyrowitz was a response to Worley’s contact, it does not constitute an “initial communication” for purposes of the FDCPA. As such, Worley has failed to state a claim under either § 1692e(11) or § 1692g(a).