The defendants in a class-action Fair Debt Collection Practices Act overshadowing case have asked a District Court judge to reconsider her partial denial of a motion to dismiss, after the judge granted the motion on two of the three counts last month.
The plaintiff received a collection letter from the defendant seeking to recover an unpaid medical debt of $248.40. The letter — which was sent on Aug. 20, 2019 — included an offer to settle the debt for a discount of 60%, if the payment was received on or before Sept. 20, 2019. The letter also included the following statement:
This offer and the deadline for accepting it do not in any way affect your right to dispute this debt and request validation of this debt during the 30 days following your receipt of this letter as described on the reverse side. If you do not accept this offer you are not giving up any of your rights regarding this debt.
The plaintiff filed a class-action suit, alleging the letter made false or misleading representations in connection with the collection of a debt and that the settlement overshadowed the plaintiff’s right to dispute the debt.
Judge Elizabeth Dillion of the District Court for the Western District of Virginia, Roanoke Division, granted the defendants’ motion to dismiss on the overshadowing count, but denied the count alleging that the defendant made misleading representations.
The plaintiff argued that this sentence, “If you do not accept this offer you are not giving up any of your rights regarding this debt” would mislead a least sophisticated consumer into believing that if he or she did accept the offer, he or she would be giving up his or her rights to contest the debt. Judge Dillion agreed with the argument, and denied the motion to dismiss that count of the complaint.
The defendants last week filed a motion to reconsider, arguing — respectfully — that dismissing the overshadowing claim is dispositive of the misleading statement claim, that the plaintiff did not assert in her complaint that the statement in question was misleading, and that the Court applied the incorrect standard in resolving the motion. Pointing to the phrase, “do not in any way affect your right” in the preceding sentence, the defense argued that the Court’s opinion “imposes a level of specificity not required by the FDCPA.”