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Date: 09-08-2014

Case Style: Robbie Pollard v. Law Office of Mandy L. Spaulding

Case Number: 13-2478

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Colorado

Plaintiff's Attorney: Sergei Lemberg and Lemberg Law, LLC on brief for appellee.

Defendant's Attorney: Scott Douglas Burke, Tory A. Weigand, Alan E. Brown, and Morrison Mahoney LLP on brief for appellant.

Description: This is one of the relatively rare
occasions on which we have been asked, in a non-class-action
setting, to visit the precincts patrolled by the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.
Specifically, we are tasked with determining whether a particular
collection letter satisfies section 1692g(b) of the FDCPA, which
requires that a debt collector's collection activities and
communications "not overshadow or be inconsistent with the
disclosure of the consumer's right to dispute the debt or request
the name and address of the original creditor." Id. § 1692g(b).
The district court concluded that the collection letter at issue
here fell short of this mark.
We hold that, for FDCPA purposes, a collection letter is
to be viewed from the perspective of the hypothetical
unsophisticated consumer. Applying this standard, we affirm the
judgment below.
I. BACKGROUND
The raw facts, memorialized by the parties' pleadings,
are undisputed. At some indeterminate point in time, plaintiffappellee
Robbie Pollard, who is a "consumer" within the meaning of
15 U.S.C. § 1692a(3), allegedly incurred a debt of approximately
$611.84. The Law Office of Mandy L. Spaulding, the defendant and
appellant here, subsequently was retained to collect the debt. In
-2-
carrying out this assignment, the defendant was operating as a
"debt collector" as defined in section 1692a(6).
On October 23, 2012, the defendant sent the plaintiff a
collection letter (a copy of which appears as an appendix to this
opinion). This letter was typed on the defendant's letterhead over
the signature "Mandy L. Spaulding, Esq." The letter explained that
the defendant had been retained to collect the monies allegedly
owed and was "not inclined to use further resources attempting to
collect this debt before filing suit." It further explained that
the defendant planned to collect the debt "through whatever legal
means are available and without [the plaintiff's] cooperation." It
went on to inform the plaintiff that the defendant was "obligated
to [its] client to pursue the next logical course of action without
delay" and described how the plaintiff could make payments.
Below the signature block, in smaller print, were several
paragraphs preceded by the caption "NOTICE OF IMPORTANT RIGHTS."
These paragraphs contained the statutorily mandated notice of
consumer rights. See id. § 1692g(a)(3)-(5).
Following her receipt of this collection letter, the
plaintiff contacted the defendant to dispute ownership of the debt
and request validation. Approximately one month after the
collection letter arrived, the plaintiff sued. In her complaint,
she asserted that the defendant had violated sundry provisions of
the FDCPA, including section 1692g. The defendant answered and,
-3-
several months later, moved for judgment on the pleadings. See
Fed. R. Civ. P. 12(c). The district court concluded, among other
things, that the collection letter violated section 1692g as a
matter of law.1 See Pollard v. Law Office of Mandy L. Spaulding,
967 F. Supp. 2d 470, 477 (D. Mass. 2013). The parties thereafter
agreed upon the damages and attorneys' fees recoverable by the
plaintiff. A final judgment entered, which preserved the
defendant's right to appeal from the ruling that the collection
letter transgressed section 1692g. This timely appeal followed.
II. ANALYSIS
Congress enacted the FDCPA to eliminate "the use of
abusive, deceptive, and unfair debt collection practices." 15
U.S.C. § 1692(a). The Act not only proscribes certain invidious
methods of debt collection but also requires debt collectors to
furnish to consumers a notice, commonly called a "validation
notice," limning certain rights and information. See id.
§ 1692g(a). Among other things, a debt collector must inform the
consumer that she has thirty days from receipt of the validation
notice within which to dispute the debt before it is assumed to be
valid and that if she disputes the debt, the debt collector will
provide her with verification of the debt's validity. See id.
§ 1692g(a)(3)-(4). If the consumer either disputes the debt or
1 At the same time, the court ruled on other issues. Those
rulings are immaterial here, and it would serve no useful purpose
to chronicle them.
-4-
requests information concerning the identity of the original
creditor within this thirty-day period, the debt collector must
suspend collection efforts until it supplies such data. See id.
§ 1692g(b).
Prior to 2006, the FDCPA did not expressly require that
the validation notice convey the consumer's rights in a
nonconfusing manner. Courts nevertheless glossed the statute with
such a requirement and routinely interpreted section 1692g to bar
the use of collection letters that overshadow or contradict the
validation notice. See McMurray v. ProCollect, Inc., 687 F.3d 665,
668 n.1 (5th Cir. 2012). The Financial Services Regulatory Relief
Act of 2006 removed any lingering doubt on this score: it amended
the FDCPA to make pellucid that "[a]ny collection activities and
communication during the 30-day period may not overshadow or be
inconsistent with the disclosure of the consumer's right to dispute
the debt or request the name and address of the original creditor."
See Pub. L. No. 109-351, § 802(c), 120 Stat. 1966, 2006-07
(codified at 15 U.S.C. § 1692g(b)).


Against this backdrop, we turn first to a late-blooming
issue that implicates our subject-matter jurisdiction. After
clearing that hurdle, we address the defendant's other claims of
error.
-5-
A. Standing.
The defendant argues for the first time in its reply
brief that the plaintiff lacks Article III standing. In most
cases, an argument advanced so late in the day and in so
perfunctory a fashion would be forfeit. See, e.g., Merrimon v.
Unum Life Ins. Co., ___ F.3d ___, ___ (1st Cir. 2014) [Nos. 13-
2128, 13-2168, slip op. at 6]; McCoy v. Mass. Inst. of Tech., 950
F.2d 13, 22 (1st Cir. 1991). But there are exceptions to this
general rule, and the defendant's lack of standing argument comes
within such an exception. After all, whether a plaintiff has
Article III standing implicates a federal court's subject-matter
jurisdiction and, thus, must be resolved no matter how tardily the
question is raised. See Merrimon, 755 F.3d at ___ [slip op. at 6-
7]; see also Vander Luitgaren v. Sun Life Assurance Co., ___ F.3d
___, ___ (1st Cir. 2014) [No. 13-2090, slip op. at 5-7] (comparing
constitutional and statutory standing). We turn to that task.
Federal courts are constitutionally empowered to
adjudicate only actual cases and controversies. See U.S. Const.
art. III, § 2; Hollingsworth v. Perry, 133 S. Ct. 2652, 2661
(2013). "A case or controversy exists only when the party
soliciting federal court jurisdiction (normally, the plaintiff)
demonstrates 'such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely
-6-
depends.'" Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012)
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). To demonstrate
that she has standing, "a plaintiff must establish each part of a
familiar triad: injury, causation, and redressability." Id.
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)).
The defendant suggests that the plaintiff lacks a
constitutionally cognizable injury because she was not flummoxed
about her statutory rights after reading the collection letter, as
evidenced by the fact that she exercised those rights. But this
suggestion gives too short shrift to the well-settled proposition
that "[t]he . . . injury required by Art. III may exist solely by
virtue of 'statutes creating legal rights, the invasion of which
creates standing.'" Warth v. Seldin, 422 U.S. 490, 500 (1975)
(quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973));
see Lujan, 504 U.S. at 578; Havens Realty Corp. v. Coleman, 455
U.S. 363, 373 (1982).
In cases in which a plaintiff's injury stems solely from
the violation of a statute, the nature of the right that the
statute confers is of paramount concern. See Warth, 422 U.S. at
500; Merrimon, ___ F.3d at ___ [slip op. at 9]; Tourgeman v.
Collins Fin. Servs., Inc., 755 F.3d 1109, ___ (9th Cir. 2014) [slip
op. at 8-9]. This principle is leavened by the corollary principle
that Congress cannot confer standing beyond the boundaries of
-7-
Article III, that is, upon individuals who have not suffered a
concrete injury. See Summers v. Earth Island Inst., 555 U.S. 488,
497 (2009). As a result, a plaintiff always must be able to
demonstrate that she suffered some "personal and tangible harm."
Hollingsworth, 133 S. Ct. at 2661.
Section 1692g prohibits debt collectors from sending
collection letters that overshadow or are otherwise inconsistent
with the required validation notice. Debt collectors who
transgress that prohibition are liable to consumers for actual and
statutory damages. See 15 U.S.C. § 1692k. Refined to bare
essence, the FDCPA bestows upon consumers a right not to receive
communications that overshadow or are inconsistent with the
validation notice. Cf. Tourgeman, 755 F.3d at ___ [slip op. at 6,
9, 12] (characterizing analogous right conferred by section 1692e
as the right not to be the target of misleading communications).
The invasion of a statutorily conferred right may, in and
of itself, be a sufficient injury to undergird a plaintiff's
standing even in the absence of other harm. See Havens, 455 U.S.
at 373-74 (holding that plaintiff suffered cognizable injury when
defendant violated statutory right to truthful housing information,
notwithstanding plaintiff's lack of any intention to rent or
purchase home). That is the case here: the FDCPA does not require
that a plaintiff actually be confused. See Jacobson v. Healthcare
Fin. Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008). Seen in this
-8-
light, the absence of confusion is irrelevant to the standing
inquiry.
The short of it is that the plaintiff adequately alleged
that her personal right was violated when she received the
collection letter. That comprised an injury attributable to the
defendant's actions — an injury that will be redressed by an award
of damages. No more is exigible to confirm the plaintiff's Article
III standing.
B. The Merits.
The defendant protests that its collection letter neither
overshadows nor contradicts the validation notice.2 The district
court thought otherwise, and we review that court's entry of
2 Although section 1692g refers to "inconsistencies," the case
law typically refers to "contradictions." Because the 2006
amendments to the FDCPA codified existing case law, courts tend to
treat those terms interchangeably. See McMurray, 687 F.3d at 669
n.2. We follow this praxis.
-9-
judgment on the pleadings de novo.3 Mass. Nurses Ass'n v. N. Adams
Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006).
This court has not previously had the occasion to
consider from whose perspective a collection letter should be
viewed for FDCPA purposes. In confronting this question, we are
not navigating uncharted waters. Two of our sister circuits have
addressed this issue and concluded that a collection letter is to
be viewed from the perspective of the hypothetical unsophisticated
consumer.4
See Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051,
3 The parties agree, so we assume for present purposes
(without deciding), that whether a collection letter overshadows or
is inconsistent with a validation notice is a question of law.
However, there is no consensus on this point. While the weight of
authority holds that the question of whether a collection letter
overshadows or is inconsistent with a validation notice is one of
law, see, e.g., Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504,
508 n.2 (6th Cir. 2007); Wilson v. Quadramed Corp., 225 F.3d 350,
353 n.2 (3d Cir. 2000), at least one court of appeals has concluded
that such a question is one of fact to be resolved by a jury, see
Walker v. Nat'l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999).
Neither party has addressed this split in authority, and we refrain
from delving into the issue without the benefit of either briefing
or developed argumentation.
4 A majority of the circuits applies a "least sophisticated
consumer" standard. See, e.g., Fed. Home Loan Mortg. Corp. v.
Lamar, 503 F.3d 504, 509 (6th Cir. 2007); Terran v. Kaplan, 109
F.3d 1428, 1431-32 (9th Cir. 1997); Russell v. Equifax A.R.S., 74
F.3d 30, 34 (2d Cir. 1996); cf. Chiang v. Verizon New Eng. Inc.,
595 F.3d 26, 42 (1st Cir. 2010) (referencing, though having no
occasion to adopt or apply, the least sophisticated consumer
standard). Labels aside, there appears to be little difference
between this formulation and the "unsophisticated consumer"
formulation. See Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996)
("[T]he unsophisticated consumer standard is a distinction without
much of a practical difference in application."). We adopt the
unsophisticated consumer formulation to avoid any appearance of
wedding the standard to the "very last rung on the sophistication
-10-
1055 (8th Cir. 2002); Gammon v. GC Servs. Ltd. P'ship, 27 F.3d
1254, 1257 (7th Cir. 1994). We think that this reading captures
the spirit of the statute. Accordingly, we hold that, for FDCPA
purposes, a collection letter is to be viewed from the perspective
of the hypothetical unsophisticated consumer.
The standard protects "all consumers, including the
inexperienced, the untrained and the credulous." Taylor v. Perrin,
Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997); see
Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). Even so,
the standard remains an objective one, which preserves an element
of reasonableness. A debt collector will not be held liable based
on an individual consumer's chimerical or farfetched reading of a
collection letter. See Taylor, 103 F.3d at 1236.
With this holding in place, we turn to the question of
whether the collection letter sent by the defendant, when viewed
through the eyes of the unsophisticated consumer, overshadows or is
inconsistent with the validation notice. We note at the outset
that, in the section 1692g milieu, courts do not always distinguish
between violations based on the overshadowing of a validation
notice and violations based on inconsistencies. Overshadowing is
a phenomenon that can take diverse forms. Typically, however,
overshadowing is based upon the visual characteristics of a
ladder." Gammon v. GC Servs. Ltd. P'Ship, 27 F.3d 1254, 1257 (7th
Cir. 1994).
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collection letter, such as when a letter demands payment in large,
attention-grabbing type and relegates the validation notice to fine
or otherwise hard-to-read print. See McMurray, 687 F.3d at 671;
Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997).
Inconsistencies, too, can occur in various shapes and
sizes. They may be either literal or apparent. See, e.g., Peter
v. GC Servs. L.P., 310 F.3d 344, 349 (5th Cir. 2002); Bartlett, 128
F.3d at 500-01. Most frequently, material inconsistencies arise
when a collection letter demands immediate payment or payment in a
definite period shorter than thirty days. See, e.g., McMurray, 687
F.3d at 670; Peter, 310 F.3d at 349.
Whether the controversy centers on overshadowing or
inconsistency, the inquiry reduces to whether a particular
collection letter would confuse the unsophisticated consumer. See
Bartlett, 128 F.3d at 500-01. This inquiry is to be conducted with
a recognition that confusion can occur in a myriad of ways, such as
when a letter visually buries the required validation notice,
contains logical inconsistencies, fails to explain an apparent
inconsistency, or presents some combination of these (or similar)
vices. See id. In the last analysis, a collection letter is
confusing if, after reading it, the unsophisticated consumer would
be left unsure of her right to dispute the debt and request
information concerning the original creditor. See Russell v.
Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996). The emphasis, then,
-12-
is on practical effect. See Graziano v. Harrison, 950 F.2d 107,
111 (3d Cir. 1991) (explaining that "statutory notice must not only
explicate a debtor's rights; it must do so effectively").
In conducting the requisite inquiry, we examine the
entire collection letter. See Peter, 310 F.3d at 349; McStay v.
I.C. Sys., Inc., 308 F.3d 188, 191 (2d Cir. 2002). Doing so, we
conclude — as did the court below — that the collection letter in
this case is confusing. The letter conveys the message that the
defendant is not inclined to do anything other than file a lawsuit
and that it plans to pursue such a course of action "without
delay." At bottom, the letter seems to threaten immediate
litigation. We think that, implicit in this threat, is the idea
that litigation can be avoided only if payment is made forthwith.
That idea is reinforced by the fact that the letter appears on law
firm letterhead and bears the signature of an attorney.
To be sure, the letter does contain the required section
1692g(a) disclosures, including a statement that the consumer may
dispute the debt in writing within thirty days. While Congress for
some reason did not require that the notice actually explain what
the effect of disputing a debt would be (putting the brakes on
collection efforts until a proper response is sent by the debt
collector, see 15 U.S.C. § 1692g(b)), we have no doubt that a debt
collector is not allowed to suggest that the effect of disputing a
debt is different than what the FDCPA provides. To give the
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required notice of a right to dispute the debt while simultaneously
and inaccurately disparaging the benefit of the right is to cause
the consumer to think that the right to dispute has less benefit
than is actually the case.
Here, this is precisely what the unsophisticated consumer
would read the letter as doing. The letter clearly and repeatedly
implies that debt collection actions are going to proceed
forthwith, come what may. Of utmost significance in this regard is
the notice of rights itself. Although the notice is arguably
legible, it nonetheless contributes greatly to the incipient
confusion. Critically, the second sentence of the second paragraph
of the notice reads "we further inform you that despite the fact
that you have a thirty (30) day period to dispute the debt may not
preclude [sic] the filing of legal action against you prior to the
expiration of the period."5 With its hopelessly scrambled syntax,
this sentence is easily read as suggesting that a lawsuit is going
to proceed without delay whether the consumer disputes the debt or
not. The other affirmative statements in the text of the letter to
5 Our dissenting brother makes the point that this sentence is
garbled because of what he regards as a typographical error. But
the source of the garbling is irrelevant to our inquiry. It is the
unsophisticated consumer's perception of the letter, not the debt
collector's intent, that controls a determination of whether a
collection letter overshadows or contradicts a validation notice.
See Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.
2010) ("To recover damages under the FDCPA, a consumer does not
need to show intentional conduct on the part of the debt
collector.").
-14-
the effect that the writer is "not inclined to use further
resources attempting to collect this debt before filing suit" and
is going to "pursue the next logical course of action without
delay" reinforce this reading.
In this manner, the letter effectively overshadows the
disclosed right to dispute by conveying an inaccurate message that
exercise of the right does not have an effect that the statute
itself says it has. We believe that when Congress required a debt
collector to give notice of this right and provided that conduct
overshadowing the disclosure of such right shall not be undertaken,
it prohibited conduct such as this — conduct that would dupe the
unsophisticated consumer into believing that disputing a debt could
not forestall a suit.
The defendant vigorously resists the conclusion that its
collection letter is confusing. We have examined the defendant's
arguments and find them wanting.
To begin, the defendant points out that the thirty-day
validation period is not a grace period. This is true as far as it
goes, but it does not get the defendant very far. The FDCPA makes
plain that a debt collector's right to seek payment coexists with
a consumer's right to notice. See 15 U.S.C. § 1692g(b) (stating
that "[c]ollection activities and communications that do not
otherwise violate this subchapter may continue during the 30-day
period" unless the consumer exercises her validation rights). The
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coexistence of these rights "create[s] a breeding ground for claims
for unsophisticated-debtor confusion" because consumers are often
faced with two seemingly contradictory statements: that they may
dispute the debt and that they must pay immediately. Durkin v.
Equifax Check Servs., Inc., 406 F.3d 410, 416 (7th Cir. 2005).
But the FDCPA pairs a debt collector's right to pursue
payment with a corresponding obligation to ensure that its
communications are not confusing. Consequently, when undertaking
collection, a debt collector bears the burden of apprising the
consumer of her validation rights in an effective manner.
Next, the defendant asseverates that its collection
letter is not confusing because it does not contain an express
demand for payment within thirty days. In support of this
asseveration, the defendant draws upon case law distinguishing
between letters that demand payment immediately or within thirty
days and letters that contain open-ended demands for payment. As
we explain below, this sets up a false dichotomy.
Unexplained demands for payment immediately or within
thirty days confuse the unsophisticated consumer because they
contain an apparent contradiction that renders her unsure of her
rights. See Peter, 310 F.3d at 349. Such collection letters can
readily be distinguished from those that merely contain "puffery"
(such as encouragement to a consumer to "act now") or that do no
more than explain the consequences of a failure to pay. Letters of
-16-
this latter stripe normally are found not to be confusing. See,
e.g., Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632,
636 (7th Cir. 2012). So, too, open-ended collection letters that
demand payment without reference to any temporal framework
typically do not violate section 1692g. See, e.g., Peter, 310 F.3d
at 349-50.
The distinction that the defendant envisions between
these two lines of cases does not aid its cause. The collection
letter in this case bears more of a resemblance to a demand for
immediate payment than to mere open-ended puffery. Although the
letter does not demand immediate payment in haec verba, it not so
subtly threatens immediate litigation and tells the plaintiff how
to make payments. The clear implication is that the plaintiff can
stave off suit only by ignoring her validation rights and making
payment.
In any event, the defendant places undue weight on the
perceived distinction between an express demand for immediate
payment and anything short of that. Overshadowing is rarely a
black-or-white proposition: there are many shades of gray. It is
impossible to catalogue the manifold ways, some subtle and some
not, in which a debt collector may attempt to circumnavigate
section 1692g. See Russell, 74 F.3d at 35; Miller v. Payco-Gen.
Am. Credits, Inc., 943 F.2d 482, 485 (4th Cir. 1991). Practical
effect is what counts, and we are confident that this collection
-17-
letter — despite the fact that it does not contain an explicit
demand for immediate payment — would confuse the unsophisticated
consumer as to her rights.
The defendant also contends that the fact that this
collection letter was sent by an attorney is irrelevant. In the
defendant's view, the source of a letter has no bearing on the
clarity of the validation notice. We do not agree.
We share the view of the Third Circuit that "[u]nder the
[FDCPA], attorney debt collectors warrant closer scrutiny because
their abusive collection practices are more egregious than those of
lay collectors." Campuzano-Burgos v. Midland Credit Mgmt., Inc.,
550 F.3d 294, 301 (3d Cir. 2008) (internal quotation marks
omitted). Thus, "[a]n unsophisticated consumer, getting a letter
from an attorney, knows the price of poker has just gone up."
Avila, 84 F.3d at 229 (internal quotation marks omitted). An
attorney's imprimatur conveys authority and induces a consumer to
act more quickly. See id. With this in mind, it would be naive
for a court to ignore the source of a collection letter. That the
letter in this case was signed by an attorney reinforces the
perception that it threatens immediate litigation.6
The defendant complains that the district court should
not have faulted it for not including "transitional" language (that
6 Although the cases on which we rely for this conclusion
involve claims under section 1692e, we think that the principles
that they articulate have more general application.
-18-
is, language explaining the interface between its threat of suit
and the plaintiff's rights) in its collection letter. It correctly
points out that the FDCPA does not require any such language, and
it laments that the court below gratuitously grafted this
additional requirement onto the statute. This plaint contains more
cry than wool.
A debt collector is, of course, free to demand immediate
payment or (sometimes) even to file suit during the thirty-day
validation period. But pursuing such a multi-directional course
can lead to confusion,7 and debt collectors remain firmly bound by
the FDCPA's command not to overshadow or be inconsistent with the
validation notice. See Ellis v. Solomon & Solomon, P.C., 591 F.3d
130, 136-37 (2d Cir. 2010). The simplest way for a debt collector
to ensure that its payment demand does not create confusion is to
provide a brief, lucid explanation of how collector and consumer
rights interact during the validation period. Two courts of
appeals have gone so far as to offer sample language. See Savino
v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998); Bartlett,
128 F.3d at 501-02.
Although the FDCPA does not require such an explanation,
it does require that collection letters not be confusing. A debt
7 One is reminded of the aphorist Stephen Butler Leacock's
tale of a man who "flung himself upon his horse and rode madly off
in all directions." Stephen Leacock, Gertrude the Governess: or,
Simple Seventeen, in Nonsense Novels 71, 73 (John Lane 1920)
(1911).
-19-
collector who chooses to brandish threats of litigation must take
pains to ensure that those threats do not obnubilate or undercut
the required validation notice. In evaluating whether a collection
letter breeds confusion, a district court thus acts well within its
proper province in noting that a debt collector could easily have
included explanatory language but chose not to do so. So it is
here.
Relatedly, the defendant argues that its collection
letter contains language sufficient to dispel any confusion. To be
specific, it argues that the second sentence of the second
paragraph of its validation notice adequately explains the
interaction between its right to initiate litigation and the
plaintiff's validation rights. But as we already have explained,
the sentence itself is unintelligible and, thus, obfuscates more
than it clarifies. Moreover, the sentence only reinforces the
defendant's intent to file suit forthwith, regardless of whether or
not the plaintiff were to seek validation of the debt. That
emphasis hardly advances the defendant's argument.
There is one final matter. Judge Baldock's dissent
emphasizes that the information conveyed by the defendant's
collection letter is true and posits that a mere typographical
error should not result in a statutory violation. To buttress his
point, Judge Baldock offers an explanation of how the letter can be
read so that it does not violate section 1692g.
-20-
But it is not a federal judge's ability to parse a
collection letter with which we are concerned. Instead, it is the
ability of the unsophisticated consumer. Moreover, that the
information is accurate does not render it nonconfusing as
presented. See Bartlett, 128 F.3d at 500-01 (explaining that the
failure to clarify an apparent contradiction is just as bad as an
outright contradiction). That a debt collector may threaten
litigation in a nonconfusing manner without violating section 1692g
does not resolve this case. Absent the garbled sentence in the
second paragraph of the validation notice, the letter here might
well have satisfied section 1692g. However, when the garbled
sentence is piled on top of the letter's compendium of threats, we
continue to believe that the effect on the unsophisticated consumer
would be to confuse.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- Dissenting Opinion Follows -
-21-
BALDOCK, Circuit Judge, dissenting. As always, Judge
Selya's prose is eloquent and his analysis thorough. Regrettably,
I cannot join, as I do not believe this letter violated § 1692g.
Defendant's letter did not explicitly demand immediate
payment or payment sooner than thirty days, and Defendant included
Plaintiff's rights to dispute the debt and to request information
on the front of the only page, in legible font. This much is
undisputed and, in my view, should settle the debate as it
distinguishes virtually all cases detailing § 1692g violations.8
Nevertheless, this court finds a statutory breach.
The court, as I read it, initially reasons Defendant
implicitly demanded immediate payment by expressing an intent to
litigate immediately. But, the court later admits — as it must —
that Defendant could indeed litigate immediately without violating
§ 1692g. See Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997)
("The debt collector is perfectly free to sue within thirty
days."). Going further, Plaintiff herself confesses "[d]ebt
collectors are free to tell consumers that, absent payment, the
collector will file a lawsuit without delay." Resp. Br. at 5
8 Compare Miller v. Payco-Gen. Am. Credits, Inc., 943 F.2d
482, 483 (4th Cir. 1991) (violation: form stated "THIS IS A DEMAND
FOR IMMEDIATE FULL PAYMENT" in large, red, and bold type, and "PAY
US — NOW" with the "NOW" taking up a third of a page), and Bartlett
v. Heibl, 128 F.3d 497, 503 (7th Cir. 1997) (violation: letter
demanded payment or contact "within one week"), with McMurray v.
ProCollect, Inc., 687 F.3d 665, 670 (5th Cir. 2012) (no violation:
"letter contain[ed] no demand for payment, much less a demand for
payment within the 30–day statutory contest period").
-22-
(emphases added); see also Zemeckis v. Global Credit & Collection
Corp., 679 F.3d 632, 636–37 (7th Cir. 2012) ("Global Credit's
repeated threat of legal action . . . fails to convert the letter's
puffery into a contradictory payment deadline."). So, if debt
collectors are free to litigate immediately, and free to tell
consumers they will litigate immediately sans payment, how is this
letter improper? Plaintiff theorizes collectors "must use
transitional or explanatory language" when they threaten prompt
litigation, lest the threat negate the disclosure of Plaintiff's
rights to dispute and to gather information. Yet the court
(rightly) rejects this theory: "[T]he FDCPA," it writes, "does not
require any such language." Apparently, a litigation threat and a
disclosure of consumer rights can coexist absent explanation — so
long as the letter does not otherwise confuse. So, aside from
lawful litigation threats, how would this letter confuse?
The court gives two reasons. First, the court finds
significant Defendant's use of law firm letterhead and a lawyer's
signature. The statute does not mention this, however, and the
court cites no case law directly on point, despite an abundance of
existing § 1692g cases.9 Second, the court opines that a sentence
in the final paragraph of the validation notice is
9 The court believes § 1692e cases are applicable, but I am
not convinced. Unlike § 1692g, several § 1692e claims explicitly
discuss attorneys and the legal context. See, e.g., § 1692e(3)
("The false representation . . . that any communication is from an
attorney [violates § 1692e].").
-23-
"unintelligible." I do not see it that way. The sentence in
question has a single typo.10 I am not inclined to find a statutory
violation based on an insubstantial typo. More importantly, rather
than confuse, the sentence merely lays out the same two
propositions discussed above: (1) the consumer has "a thirty (30)
day period to dispute the debt", which is true, and (2) Defendant
may still file a lawsuit within this thirty-day window, which is
also true. Put another way: The aspect of this letter most relied
upon to hold a consumer would be confused about her right to
dispute the debt is a sentence that reiterates a consumer has a
right to dispute the debt. I fail to discern the problem.
In conclusion, the letter as a whole is relatively
straightforward and does not "overshadow" or contradict the
disclosure of consumer rights. Even an unsophisticated consumer
would not be confused here. See Fed. Home Loan Mortg. Corp. v.
Lamar, 503 F.3d 504, 510 (6th Cir. 2007) (least sophisticated
consumer would read material "carefully" and "in its entirety").
I respectfully dissent.
10 It appears plain to me Defendant simply forgot to delete
the word "despite" from the sentence, perhaps after a revision.
-24-

Outcome: We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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