Judge Grants MTD in Letter Case, Labeling Arguments as ‘Strained and Disingenuous’

A District Court judge has used a collection industry defendant’s favorite word in granting a motion to dismiss: frivolous, after the defendant was accused of violating the Fair Debt Collection Practices Act by misrepresenting the amount of attorney involvement in a collection letter.

A copy of the ruling in the case of Bencomo v. Forster & Garbus LLP can be accessed by clicking here.

The plaintiff received a collection letter in regards to an unpaid retail credit card debt. The letter, which included the defendant’s letterhead and referenced the defendant as a “Nw York law firm” included the following passage:

At this time we are only acting as a debt collector. Attorneys may act as debt collectors. Our firm will not commence a suit against you. However, if we are not able to resolve this account with you, our client may consider additional remedies to recover the balance due. . . . Please note that we are required, under federal law to advise you that we are debt collectors and any information we obtain will be used in attempting to collet this debt.

The plaintiff argued that, at the time the letter was sent, no attorney had been involved in her case, even though the letter created the false impression that an attorney had personally reviewed her information. As well, including the phrase “additional remedies” without specifically referencing how they fit into the 30-day window to dispute the debt also violated the FDCPA.

The plaintiff argued that an unsophisticated consumer would not understand that “law firm” and “attorneys” mean the same thing. Judge JP Stadtmueller of the District Court for the Eastern District of Wisconsin, did not see it that way.

“Therefore, although the unsophisticated consumer might understand the first sentence of the Letter’s disclaimer to mean that Forster, the law firm, was “only acting as a debt collector” and “will not commence a suit,” that the attorneys at the firm, who are different from the firm itself, may have acted in a lawyerly capacity with respect to the debt, and may have reviewed the consumer’s account with an eye toward litigation,” Judge Stadtmueller wrote. “The Court does not agree. This proposed interpretation of the Letter is at best idiosyncratic, and at worst frivolous.”

Finally, Judge Stadtmueller sided with the defendant that including the phrase “Our firm will not commence a suit against you” in the letter was more than enough to “disavow” any intention to sue the plaintiff.

Calling some of the plaintiff’s arguments “strained and disingenuous,” Judge Stadtmueller dismissed the suit.

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