Judge Grants Motion on Pleadings for Defense in FDCPA Case Over Avila Disclosure in Letter

Verbs are important components of a sentence. In fact, a sentence isn’t really a sentence without a verb in it. But choosing the right verb can be difficult. Take, for example, a collection letter that includes a disclosure attempting to inform the recipient of the letter that the balance that is owed is not static. If the sender of the letter knows that the balance is growing because interest is accruing on the unpaid debt, does the sender have to be definitive in notifying the recipient of said accrual? Not necessarily, according to a District Court judge in New York, who granted a defendant’s motion for judgment on the pleadings in a Fair Debt Collection Practices Act case.

A copy of the ruling in the case of Klein v. Forster & Garbus can be accessed by clicking here.

The plaintiff received a collection letter from the defendant seeking to collect on an unpaid credit card debt. The letter included the following disclosure: “[i]f interest or other charges or fees accrue on this account, after the date of this [L]etter, the amount due on the day you pay may be greater.” The plaintiff filed suit, alleging the defendant violated Section 1692e of the FDCPA because the letter “merely alludes” to the possibility that the balance is accruing when, in fact, the defendant was “well aware that interest is definitely accruing.”

The disclosure in question is taken almost straight out of the ruling in Avila vRiexinger & Associates., LLC, which requires collectors to notify individuals that the balance may be increasing because of fees and interest continuing to accrue on the unpaid balance. But the court stopped short of providing exact language to be used, saying that a collector must “accurately inform” the individual that the amount of the debt stated in the letter will increase over time. In this case, the plaintiff claimed that by using the word “if” in its disclosure, the defendant was not being definitive enough.

Thankfully, Judge Dora Irizarry of the District Court for the Eastern District of New York had plenty of cases to back up her determination that the disclosure in question did not violate the FDCPA.

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