Judge Grants MTD in FDCPA Case Over Alleged Conflicting, Overshadowing Language in Letter

In a case that was defended by the team at Malone Frost Martin, a District Court judge in Illinois has granted a defendant’s motion to dismiss after it was sued for violating the Fair Debt Collection Practices Act by allegedly making conflicting and overshadowing claims in a collection letter.

A copy of the ruling in the case of Chisom v. Afni can be accessed by clicking here.

The plaintiff received a collection letter from the defendant. The letter included the following validation statement:

If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of the debt or any portion thereof, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. 

The letter also included the following disclosure:

The Law Limits how long you can be sued on a debt. Because of the age of your debt, COMCAST cannot sue you for it. If you do not pay the debt, Afni may report the debt to any credit reporting agency for as long as the law permits this reporting. Afni cannot sue you on this debt. In many circumstances, you can renew the debt and start the time period for the filing of a lawsuit against you if you take specific actions such as making certain payment on the debt or making a written promise to pay. You should determine the effect of any actions you take with respect to this debt. 

The plaintiff alleged that by referencing a judgment yet also mentioning that she could not be sued was a false, misleading or deceptive statement. The plaintiff also claimed that by stating the defendant may continue to report the debt “for as long as the law permits” was false or misleading because the defendant was obligated not to report the debt if it was disputed. Finally, the plaintiff claimed she was confused by the phrase “renew the debt” and what it meant. She filed suit, alleging the defendant violated Sections 1692e, 1692e(2)(A), 1692e(5), 1692e(10), 1692f, and 1692g(b) of the FDCPA.

After first determining that the plaintiff, in fact, had standing to file the suit, Judge Robert Blakey of the District Court for the Northern District of Illinois, Eastern Division, then went to work analyzing the defendant’s arguments why the case should be dismissed.

Even an unsophisticated consumer knows what “or” and “a” mean, Judge Blakey ruled, looking at precedents from other cases. Either obtaining verification of the debt or obtaining a copy of the judgment indicates one or the other, not both. And referencing “a judgment” is not the same as “the judgment” or “your judgment.” “No formal education is needed to understand that the indefinite article ‘a’ leaves unaddressed whether or not a judgment exists,” wrote Judge Blakey, quoting the judge in Smith v. Convergent Outsourcing. Using the notice cited by Congress when it enacted the FDCPA was enough for the defendant not to violate the statute.

Judge Blakey also did not buy the plaintiff’s argument that the statements in the letter overshadowed her right to dispute the debt and seek verification of it. “Language encouraging debtors to pay their debts by notifying them of the potential negative consequences of default does not, without more, overshadow; indeed, ‘during the validation period, the debtor’s right to dispute coexists with the debt collector’s right to collect,’ ” Judge Blakey wrote, citing the ruling in Durkin v. Equifax Check Services.

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