Judge Dismisses FDCPA Case Over Time-Barred Safe Harbor Language in Letter

A plaintiff has had his class action lawsuit alleging violations of the Fair Debt Collection Practices Act dismissed after he alleged that a collection letter he received was deceptive because the “we” in “we will not sue you for this debt” was misleading, and saying “will not” still implies that the collector could have sued him, even though the debt was time-barred.

The defendant in this case, Midland Credit Management, had a pretty good defense — it was using safe harbor language it received from the Consumer Financial Protection Bureau following a 2015 Consent Order it had entered into with other debt buyers. The safe harbor language was also signed off on by the Federal Trade Commission in a separate action.

A copy of the ruling in Trichell v. Midland Credit Management can be accessed by clicking here.

Midland Funding had purchased the outstanding credit card debt of the plaintiff, and placed the account with Midland Credit for collection. Midland Credit sent three collection letters attempting to collect on the debt. When the collection letters were sent, the six-year statute of limitations in Alabama — where the plaintiff resided — had expired. The plaintiff alleged the letters violated Sections 1692e and 1692f of the FDCPA, which prohibit using false, deceptive, or misleading means in an attempt to collect on a debt.

The letters offered discounts depending on how much of the debt the plaintiff was willing to repay. The final paragraph of each of the collection letters included the following language:

The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.

The plaintiff tried to argue that the “we” in “we will not sue you,” was confusing as to whether it referred to Midland Funding or Midland Credit. Judge Annemarie Axon of the District Court for the Northern District of Alabama, Middle Division, was having none of it.

“Even the least-sophisticated consumer would not read the language ‘we will not sue you’ and parse whether the ‘we’ includes only the signatory of the letter or both the signatory of the letter and the owner of the debt,” she wrote.

The plaintiff also tried to argue that saying “we will not sue you” implied the defendant still could sue, but was choosing not to do so.

“The court concludes that, as a matter of law, even a ‘least sophisticated consumer’ would not find Midland Credit Management’s collection letters deceptive or misleading,” wrote Judge Axon. “Even accepting as true all facts asserted by Mr. Trichell and making all reasonable inferences in his favor, Midland Funding and Midland Credit Management have not violated § 1692e of the FDCPA.”


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