In Derosa v. CAC Financial Corp., Case No. 17-3189, 2018 WL 5344906 (2nd Cir. October 29, 2018), the Court of Appeals for the Second Circuit held in an unpublished decision that a dunning letter is deceptive under the FDCPA for failing to state that interest will and fees will accrue only if, in fact, interest and fees actually will and do accrue.
In Taylor v. Financial Recovery Services, Inc., 886 F.3d 212 (2d Cir. 2018), this Court was faced with the same question that we are faced with today: are collection notices that do not identify whether interest and fees are accruing a “per se violation” of the FDCPA? Id. at 214. Taylor answered that question in the negative: if a debt is not accruing interest and fees, “a collection notice that fails to disclose that interest and fees are not currently accruing on a debt is not misleading within the meaning” of the FDCPA. Id. at 215. The only issue in this case, then, is whether Derosa created a genuine dispute of material fact as to whether interest and fees continued to accrue on her account while CAC was responsible for collecting on the debt. We conclude that she did not. CAC put forward evidence to support its motion for summary judgment and the fact that interest and fees were not accruing: a declaration by a person associated with CAC stating that the amount CAC sought to collect remained static, and two debt-collection letters, one of which Derosa acknowledges receiving, reflecting that the amount CAC sought to collect did not change from June to August. . . .Derosa adduced two pieces of evidence in support of her claim that the account continued to accrue interest and fees: (1) a personal declaration stating that her account had previously “accrued interest on any balances carried, and late fees on any late or missed payments”; and (2) a generic credit card agreement, which she alleged showed that the account would continue to accrue interest and fees even in default. Neither piece of evidence establishes a genuine dispute of material fact. The fact that the account accrued interest and fees when being administered by the original creditor is not indicative of how the account would function when transferred to a debt-collection agency like CAC. It is thus speculative to claim that the underlying account would continue to accrue interest and fees when the account had been transferred or assigned to another party for collection. Speculation alone is not enough to defeat a motion for summary judgment. See Major League Baseball, 542 F.3d at 310. We have considered Derosa’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.