Judge Dismisses FDCPA Overshadowing Case

With all the attention focused on collection letters these days, it can be heartening to see the industry get a win.

A federal judge in Illinois has granted a defendant’s motion to dismiss after a plaintiff filed suit alleging the letter he received violated the Fair Debt Collection Practices Act because it included detachable coupons to accompany a payment.

The plaintiff argued that the text of the letter, coupled with the coupons, indicated that a payment was due immediately, thus overshadowing the 30-day validation notice period prescribed under the FDCPA.

A copy of the ruling in the case of Baratta v. Financial Recovery Services can be accessed by clicking here.

The text of the letter said:

The account(s) listed above have been assigned to this agency for collection. As of the date of this letter you owe $445.71.

While your account is with our office, if you pay $445.71, the above-referenced account will be considered paid in full. Please feel free to call us at the toll-free number listed or use our online consumer help desk. FRS now accepts some forms of payment online at www.fin-rec.com. See your online access pin above.

The letter sent by the defendant, despite the claims of the plaintiff, was “utterly absent” of any demand for payment, the judge ruled.

“The court finds no language in the letter even suggesting that payment is due immediately,” wrote Judge Joan Lefkow of the Northern District of Illinois, Eastern Division. “If Baratta contends that the urgency resides in the conditional statement, “. . . if you pay $455.71, the above-referenced account will be considered paid in full,” the court is unpersuaded.”

By including the payment coupons with the letter, the plaintiff argued, “an impression of payment being due immediately” was created. But again, the judge was unpersuaded.

“There is no language suggesting immediacy,” Judge Lefkow wrote. “There is no puffery—the letter does not even urge Baratta to pay his debt. It only informs him that he may pay it. There is no threat of legal action. And the validation notice is not relegated to the back of the letter. This letter comfortably meets the requirements of § 1692g.”




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