Colo. Appeals Court Overturns Ruling on Overshadowing Case

The Colorado Court of Appeals has overturned a lower court’s ruling with respect to how the “least sophisticated consumer” is defined as a result of an overshadowing case related to allegations that a collection agency violated the Colorado Fair Debt Collection Practices Act.

The plaintiff received a collection letter from the defendant related to an unpaid hospital bill. Less than 30 days later, the plaintiff received a second collection letter from the defendant. The second collection letter included the statement, “WE CAN NOT HELP YOU UNLESS YOU CALL” in a larger font size and in boldface type. While a lower court ruled this did not violate the state’s collection law, the appeals court decided otherwise.

In determining how to assess whether the letter would be confusing to the least sophisticated consumer, the court used the following definition for said individual: Can the letter in question be reasonably read to have two different meanings, one of which is inaccurate?

By sending this notice within the 30-day window in which an individual has to dispute a debt, where the dispute has to be filed in writing, the defendant would confuse the least sophisticated consumer, the appeals court ruled, because the second letter was “capable of being reasonably interpreted by the least sophisticated consumer as changing the manner in which the consumer was required by law to dispute the debt or its amount.”

“… the above-quoted language did more than simply invite oral communication,” Judge Daniel Daley wrote in his ruling. “The statement is directed at a particular audience, i.e., ‘You’ (the consumer); the use of the forceful words ‘cannot’ and ‘unless’ conveys to a reader a strong sense of limitation — indeed, an inability to do anything on the consumer’s behalf except on the condition that the consumer calls.The statement, read as a whole, carries with it the implication that ‘we can only help you if you call.’ ”

The case is Deborah Garrett v. Credit Bureau of Carbon County, doing business as Collection Center, Inc.


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