Judge Grants MTD in FDCPA Overshadowing Case

A Magistrate Judge in a District Court in Alabama has granted a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act by sending a second collection letter during the validation period that offered a settlement and informed the plaintiff that the account may be forwarded to an attorney.

A copy of the ruling in Cooper v. Atlantic Credit & Finance can be accessed by clicking here.

The plaintiff received two letters — an initial collection letter and validation notice that was sent on Oct. 3, 2017, and a second letter that was sent 10 days later. The second letter included the following passage:

Atlantic Credit & Finance has made several attempts to contact you regarding this account. This letter is to inform you that Midland Funding, LLC is considering forwarding this account to an attorney in your state for possible litigation. Upon receipt of this notice, please call 800-888-9419 to discuss your options.

If we don’t hear from you or receive payment, Midland Funding, LLC may proceed with forwarding this account to an attorney.

Atlantic Credit & Finance would like to make arrangements with you to resolve the above-referenced account using the following options:

1) A one time repayment amount of $798.69 to be due on 10/31/2017;

2) Bi weekly payments as low as $25.00 until balance is paid in full.

These payment opportunities do not alter or amend your validation rights as described in our previous letter to you. Please contact our office at 800-888-9419 to take advantage of one of the above options. Once you have completely fulfilled one of the above payment arrangements you will be released from this obligation.

We are not obligated to renew this offer.

Thank you for your cooperation in resolving the matter.

The plaintiff filed suit, alleging the letter violated Section 1692g of the FDCPA by overshadowing her 30 days to dispute the debt after receiving the validation notice. The Magistrate Judge ruled that the language of the second letter was structured in such a way so as to not violate the FDCPA.

“Defendants have shown that nothing in the Second Letter (either in isolation or as a whole) can be conceivably or plausibly construed as a demand for payment during the validation period,” wrote Judge John England, III. “Because the Second Letter does not contain any overt misinformation, apparent contradiction, or noticeable lack of clarity concerning the validation period or the debtor’s rights under § 1692g,” the plaintiff failed to state a plausible claim.

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