Judge Grants MTD in FDCPA Case Over Identity Theft Letter

A District Court judge in New Jersey has granted a defendant’s motion to dismiss a class-action Fair Debt Collection Practices Act lawsuit over a letter that was sent to the plaintiff providing information about how to file an identity theft claim.

A copy of the ruling in the case of Ozturk v. AmSher Collection Services can be accessed by clicking here.

The plaintiff received a letter from the defendant in regard to an unpaid cell phone bill. The letter provides instructions on what to do if the recipient believes he or she is a victim of identity theft, while also including a summary of the account and a QR code that linked to the defendant’s website to allow the recipient to make a payment online. The letter also included a mini-Miranda notice.

The plaintiff filed suit in state court in New Jersey, alleging the letter violated Sections 1692e(2)(A), 1692e(5), 1692e(10), and 1692f of the FDCPA. Essentially, the plaintiff said that the contents of the letter misrepresented the defendant;’s obligations related to identity theft under the Fair Credit Reporting Act and that the letter’s “simultaneous” attempt to provide assistance while also attempting to collect on a debt was false and misleading.

To the plaintiff’s detriment, there is nothing that says an alleged violation of the FCRA supports a claim that the FDCPA was also violated, noted Judge Claire C. Cecchi of the District Court for the District of New Jersey. Also in the defendant’s favor was the fact that it was apparently never notified by the plaintiff that her identity may have been stolen; the letter appears to have been unsolicited.

“… Plaintiff fails to point to anything in the FDCPA (or FCRA for that matter) that prohibits a debt collector from proactively offering assistance on identity theft,” Judge Cecchi wrote. “Nor does she allege either that Defendant failed to pass along a claim of identity theft to T-Mobile, or, refused upon request to provide her with the information she would otherwise be entitled to under a debt dispute.”

The plaintiff also claimed that a least sophisticated debtor would be confused by the content of the letter because it also allegedly included an attempt to collect on the debt. But that just is not the case, the judge ruled.

“… nothing in Defendant’s Letter could be understood to deceptively push the least sophisticated debtor to make a decision she otherwise would not have,” she wrote. “If anything, the identity theft information might assist a victim who is unaware of the opportunity to file an identity theft claim to do just that. But this is hardly misleading-let alone materially so-and irrelevant to the crux of Plaintiff’s claim that the joint purposes of this Letter, when combined, were false, deceptive, and misleading.”

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