In Bryan v. Credit Control, LLC, No. 19-244-cv, 2020 U.S. App. LEXIS 10519, at *7-9 (2d Cir. Apr. 3, 2020), the Court of Appeals for the Second Circuit gave guidance on disclosure of “true creditor” in a credit card collection transaction for a credit card for a private label retailer.
In arguing that Credit Control violated Section 1692g, Bryan insists that “the creditor to whom the debt is owed” is synonymous with the “owner” of the debt, and that Credit Control was therefore required to list Capital One – not Kohl’s – as the creditor to whom Bryan’s credit card debt was owed. The FDCPA provides that a “creditor” is “any person who offers or extends credit creating a debt or to whom a debt is owed,” except if that person “receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). Relying on the Program Agreement, the district court found that Kohl’s qualified as a creditor because “Kohl’s is the entity offering credit accounts to its customers . . . and, in turn, facilitating the incurrence of monetary obligations through transactions by consumers exclusively at its stores.” Bryan v. Credit Control, LLC, No. 18-CV-0865 (SJF)(SIL), 2018 U.S. Dist. LEXIS 209783, 2018 WL 6520730, at *4 (E.D.N.Y. Dec. 11, 2018), report and recommendation adopted, 2019 U.S. Dist. LEXIS 4902, 2019 WL 166100 (E.D.N.Y. Jan. 9, 2019). But the mere fact that Kohl’s participated in the credit card program with Capital One and played an active role in the servicing of accounts does not necessarily convert Kohl’s into a creditor, and certainly not into the creditor to whom the debt is owed. Indeed, the [*9] Cardmember Agreement clarifies that Capital One is “the creditor and issuer of the Account,” and that Kohl’s is merely an “agent” responsible for “servicing [the] Account . . . on [Capital One’s] behalf.” App’x 117 ¶ 1. Put simply, the terms of both Kohl’s agreement with Capital One and Capital One’s agreement with the cardholder make clear that Kohl’s was not a creditor under the FDCPA at all. The collection letter appears to reflect as much, since it identified Chase as the “original credit grantor” and merely identified Kohl’s as Credit Control’s “client” – a term that says nothing about the department store’s status as a creditor. By 2017, Capital One had replaced Chase as the “credit grantor,” making Capital One, not Chase and certainly not Kohl’s, the creditor to whom the debt was owed. Thus, since the collection letter did not identify Capital One at all, it did not comply with Section 1692g. Accordingly, the district court erred when it granted judgment on the pleadings in favor of Credit Control. Because Bryan has plausibly pleaded a cause of action pursuant to Section 1692g, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.