When it comes to Fair Debt Collection Practices Act lawsuits, there are not many claims that haven’t already been made. Plaintiffs and their lawyers have been attacking the FDCPA for years and had pretty much identified all the different reasons why a debt collector could be sued. So when you come across a ruling — granting a motion to dismiss — where the judge says that a plaintiff’s “theory of deception does not appear to have previously been considered by any court,” your eyes perk up and you sit a little bit more upright in your chair as you keep reading. In this case, a District Court judge in New York has granted a defendant’s motion to dismiss after it was sued for essentially playing the pronoun game in a validation letter.
A copy of the ruling in the case of Susino v. Lacy Katzen can be accessed by clicking here.
The plaintiff made a number of claims, but it was the first one that Judge Elizabeth Wolford admitted she hadn’t seen before. In the letter, the defendant included the statutory text from the FDCPA reciting the consumer’s rights to dispute a debt. Here it is:
Unless the consumer, within thirty days after the receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. If the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer (if a judgment exists) and a copy of such verification or judgment will be mailed to the consumer by the debt collector. Upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
Notice anything different? The plaintiff claimed that by using “the consumer” instead of “you,” she was deceived because the letter “does not advise the recipient that it has anything to do with her.” But, as Judge Wolford noted, while a least sophisticated consumer may be naive, she is not “a dimwit.”
“It would be bizarre indeed to read the references to ‘the consumer’ in the Letter as referring to anyone but Plaintiff, the addressee and holder of the alleged debt,” Judge Wolford wrote.
The plaintiff also claimed that the letter violated the FDCPA because the second page contained a statement that read, “Any writing which disputes the validity of the debt or any portion thereof, or any writing requesting the name and address of the original creditor may be sent to the mailing address identified above.” The problem? There was no mailing address above the statement as indicated and there was no address anywhere on the second page of the letter. But there was an address in the letterhead at the top of the first page of the letter and that was sufficient for Judge Wolford to deny that claim as well.
The plaintiff also claimed that the letterhead — Lacy Katzen, LLP Attorneys at Law — meant there should be details in the letter about whether legal action was imminent, and that the letter falsely implied that attorneys were meaningfully involved in reviewing the details of her account.