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Judge Denies Motion to Dismiss FDCPA Suit Over Dispute Notice in Letter

A District Court judge in New Jersey has denied a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act by not indicating in an initial collection letter to an individual that a dispute must be filed in writing.

A copy of the ruling in Vedernikov v. Mercantile Adjustment Bureau LLC can be accessed by clicking here.

The plaintiff received a collection letter from the defendant that included the following statement:

If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor.

Calls to or from this company may be monitored or recorded.

This is an attempt to collect a debt and any information obtained will be used for that purpose. This is a communication from a debt collector.

The plaintiff alleged the letter violated the FDCPA because it did not explicitly indicate that the dispute must be filed in writing. The defendant filed a motion to dismiss, in part arguing that Section 1692g(a) of the FDCPA is unconstitutionally vague. That led the court to reach out to the Attorney General, offering an opportunity to weigh in. The Attorney General declined to do so, but did suggest that the judge wait until the Third Circuit had ruled on the issue, a stay that the plaintiff and defendant disagreed with.

Ruling that the validation notice sent by the defendant could have two meanings — that a dispute could be made over the phone or in writing — one of which is inaccurate, satisfies the least sophisticated consumer standard, Judge Anne Thompson of the District Court for the District of New Jersey ruled.

It is true that the validation notice closely tracks the statutory language of § 1692g(a). Unfortunately for Defendant, however, the statutory language is subject to conflicting interpretations. … A validation notice that copies the statutory language, therefore, will likewise be subject to conflicting interpretations and will fail to apprise the least sophisticated debtor of her rights.

Judge Thompson also ruled that Section 1692g(a) of the FDCPA is not unconstitutionally vague, as argued by the defendant. In order to be considered vague, the language must be “profound to be unconstitutional,” Judge Thompson wrote.

Here, Defendant had fair warning that § 1692g(a) requires it to inform consumers that they must dispute debts in writing. Defendant is a business operating in the particular industry of debt collection; as such it should be aware of the FDCPA — a statute specifically regulating that industry — and the case law interpreting it. Defendant could have reasonably anticipated that § 1692g(a) would be applied in the way that the Court applies it today, given that this Opinion mirrors the reasoning of other recent opinions in this District.

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