Judge Grants MSJ For Defendant in FDCPA Overshadowing Case

A District Court judge in New Jersey has granted a defendant’s motion for summary judgment after it was sued for a number of alleged violations of the Fair Debt Collection Practices Act, including duplicating part of the validation notice on both sides of a collection letter.

A copy of the ruling in the case of Espinal v. Enhanced Recovery Company, LLC can be accessed by clicking here.

The plaintiff received a collection letter from the defendant. The letter included the following statement on the front: “Unless you dispute the validly of the debt, or any portion thereof, within thirty (30) days after your receipt of this notice, the debt will be assumed to be valid by us.” On the back of the letter, the entire validation notice was printed, including the dispute provision.

The plaintiff alleged that duplicating a portion of the validation notice violated Section 1692e of the FDCPA by making false or misleading representations, claiming that the dual inclusion of Section 1692g(a)(3) of the FDCPA on both sides of the letter overshadowed the complete validation notice on the back of the letter and would have confused a least sophisticated consumer into thinking that the 1692g(a)(3) provision was more important than the rest of the provisions in that section. Judge John Michael Vazquez of the District Court for the District of New Jersey ruled that including a particular provision on both sides of the letter did not overshadow the entire validation notice, because there was a disclosure on the front of the letter that said, “Notice — See Reverse Side for Important Notice and Consumer Rights” in bold, capital letters. “If anything,” Judge Vazquez wrote, “the repeated (a)(3) language highlights the fact that a debtor must act within thirty days if she wants to dispute any portion of the debt.”

Another portion of the letter stated:

A portion of your balance may Include fees due to unreturned Time Warner Cable equipment. Once your Time Warner Cable equipment is returned, your Outstanding balance may be credited up lo the value of the equipment returned. At that point we can offer you several options for resolving the remaining balance. If you do not have your Time Warner Cable equipment or cannot return it, your entire balance is being called due now.

The plaintiff also claimed the use of the phrase “called due now” overshadowed the validation notice, but Judge Vazquez denied the plaintiff’s motion for summary judgment on this issue because the plaintiff did not assert this specific allegation in her complaint.

Finally, the plaintiff claimed the defendant violated the FDCPA by using an acronym, ERC, in the collection letter, instead of its full corporate name. But because the defendant had registered the acronym with the New Jersey Division of Revenue and Enterprise Services and as a tradename in Florida, where it is based, and because it regularly uses ERC when sending collection letters, Judge Vazquez ruled the defendant did not violate Section 1692e(14) of the FDCPA.

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One comment

  1. I am glad to see that more and more often, judges are using common sense when deciding these cases and pushing back against the attorneys that see fit to bring them. The plaintiff’s BAR in bringing these meritless and frivolous actions, is trying to portray the general public as stupid and the judges see right through it. While there have been and still are situations in which the least sophisticated consumer standard is applicable, they are rare. The plaintiff’s bar is showing their true colors and intentions, which is to make money off the backs of consumers. Caring about whether or not debt collectors are acting appropriately is not their concern.

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