A District Court judge in New York has granted a defendant’s motion to dismiss a class-action after it was sued for violating the Fair Debt Collection Practices Act by allegedly threatening that legal action was imminent if a payment was not made and because the alleged threat overshadowed the validation notice.
A copy of the ruling in the case of Rosenberg v. Client Services, Inc. can be accessed by clicking here.
The plaintiff received a collection letter from the defendant that included the following disclosure directly underneath the validation notice:
Please note, we have many payment options that may meet your individual needs. If we are unable to arrange repayment, Capital One will send your account to an attorney in your state for possible legal action. Please note, no decision has been made to take legal action against you at this time. I want to help you avoid any possible legal action. Please call me at 877- 665-3303 for more information. I look forward to working with you to resolve this balance
The plaintiff filed suit, alleging the letter violated Sections 1692e(10), 1692e(2)(A), 1692f, and 1692g of the FDCPA. The defendant argued that the letter did not threaten imminent legal action, to which Judge Vincent Briccetti of the District Court for the Southern District of New York, agreed.
Selectively reading portions of the letter may make it seem like legal action is imminent to a least sophisticated consumer, Judge Bricetti acknowledged, but when read in its entirety, the disclosure in question does nothing to convey that such a development is “imminent.”
And even if legal action was imminent, the plaintiff did nothing to allege that the language was deceptive or misleading, Judge Bricetti noted.
The inclusion of a phone number in the referenced statement does not overshadow the validation notice, the judge ruled, because it “merely” encouraged the debtor to communicate with the defendant.