Calling a plaintiff’s argument “bordering on absurdity,” a District Court judge in Illinois has granted a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act by sending a collection letter that said an attorney had not yet reviewed the circumstances of the case in question, but could do so at a later point and decide to file a lawsuit against the plaintiff, at which point the lawyer would ask for the court to enter a judgment against the plaintiff for the full amount owed.
A copy of the ruling in the case of Sholty v. Cavalry Portfolio Services, LLC and Cavalry SPV I, LLC can be accessed by clicking here.
The plaintiff received a collection letter from the defendant in relation to an unpaid credit card debt. The letter included the following passage:
As of the date of this letter, your account meets Cavalry’s guidelines for placement with one of Cavalry’s collection law firms practicing in your state.
Please contact a Cavalry representative at (866) 434-2995 to discuss your payment options. Cavalry is committed to working with you to come up with a payment arrangement to resolve your account.
As of the date of this letter, no attorney has reviewed the particular circumstances of your account to determine whether a lawsuit should be filed against you. If your account is placed with a collection law firm, an attorney will review your account and make the final decision as to whether a lawsuit should be filed.
If a lawsuit is filed, the law firm will ask the court to enter a judgment against you for the full amount that you owe. You will have the opportunity to defend yourself after the lawsuit is filed. If a judgment is entered, the law firm will be authorized to take further action to satisfy the balance owed on the judgment.
You may contact us at (866) 434-2995.
The plaintiff filed suit, alleging the letter violated Section 1692e, 1692e(10), and 1692f of the FDCPA by using false representations or deceptive means to collect on a debt. The false representations, according to the plaintiff, were that the letter “misleadingly portrayed a potential collection lawsuit to be completely in favor of Defendants. Plaintiff was unfairly harassed and confused by Defendants’ representations, as there were no legal proceedings initiated against Plaintiff with regard to the subject debt at the time the correspondence was sent. Defendants’ correspondence purposefully obfuscated the rights and options Plaintiff would have in order to avoid a judgment, which was highly confusing to Plaintiff. Moreover, Defendants’ portrayal of a possible lawsuit against Plaintiff as one-sided in favor of Defendants is misleading to a consumer, because it fails to account for Plaintiff’s options to dispute Defendants’ allegations.”
The plaintiff also attempted to argue that the portion of the letter that stated “if a lawsuit is filed, the law firm will ask the court to enter judgment against you for the full amount that you owe” was false and misleading because “the language and structure of Defendants’ Collection Letter does not clarify the distinction between asking a court for entry of judgment and the subsequent entry of judgment by such court[.]”
But Judge James Shadid of the District Court for the Central District of Illinois, shot the argument down in quick order.
“Here, Plaintiff’s argument borders on absurdity,” Judge Shadid wrote. “Of course Defendants would ask a court to enter judgment against Sholty if they sued him—in fact, at least under the Federal Rules of Civil Procedure, they would be required to do so.”
Judge Shadid also pointed out that the language in the defendant’s letter was less deceptive than the language included in the summonses used for all civil actions filed in federal courts, which says, “[i]f you fail to respond [to the complaint], judgment by default will be entered against you for the relief demanded in the complaint.”
The judge even shot down the language suggested by the plaintiff to address the perceived errors in the letter. The plaintiff suggested altering the letter to read, “if a lawsuit is filed, the law firm will ask the court to enter a judgment against you for the full amount that you owe, which may result in a judgment being entered against you.” But Judge Shadid noted that the “proposed language could suggest to unsophisticated consumers that a judgment will inevitably follow on the heels of a request for one—it explicitly ties the request for judgment with the entry of judgment, with no reference to the ability to defend oneself in between. Plaintiff’s proposed changed creates confusion rather than clarity.”