Judge Denies Motion to Dismiss FDCPA Suit Over Language in Letter

“Just you wait until your father gets home,” was a common refrain for many kids growing up as mothers caught them engaging in some form of conduct that was not allowed, but decided to let dad take care of the punishment when he returned from a hard day at the office.

A District Court judge in Florida has denied a collection agency’s motion to dismiss a lawsuit for allegedly violating the Fair Debt Collection Practices Act by informing an individual that if a payment was not received, the agency would refer the account back to the client, “recommending that further action be taken against you.”

The closing of the letter — “Govern yourself accordingly,” also sent an ominous tone for the collection letter.

A copy of the ruling in Bond v. Ideal Collection Services can be accessed by clicking here.

The defendant sent the plaintiff a collection letter, which included the following language:

Pursuant to Public Law 95-109, the Fair Debt Collections [sic] Practices Act, you have been notified of this debt and have been given ample time to make restitution on this account to our office. Therefore, if we do not receive your PAYMENT IN FULL WITHIN TEN (10) DAYS, we shall refer this case back to our client recommending that further action be taken against you. Consequently, this may result in an increase of your total indebtedness which may include one or more of the following fees where applicable by law: collection fees, court cost[s], filing and attorney fees.

Nearly a year passed without any further action being taken, at which point the plaintiff filed a lawsuit, alleging the defendant violated Sections 1692e and 1692f of the FDCPA, because the letter was false or misleading and because it used an unfair or unconscionable means to collect a debt.

The defendant argued that the letter was not a violation of the FDCPA because it was not a threat of impending legal action, merely an attempt to inform the individual that the account would be referred back to the client if the debt was not paid. And, the defendant had no knowledge of what action, if any, the client took after the account was referred back to it.

Employing the least sophisticated consumer standard, the judge in this case ruled the language in the letter was subtle enough to that it “could deceive a least sophisticated consumer to believe a lawsuit loomed after the ten- day period expired.”

Nor could the defendant “shift the blame onto its client as the entity who could take legal action against” the plaintiff, the judge ruled, in denying the motion to dismiss.