Debt collector letters to consumers can violate the Fair Debt Collection Practices Act otherwise known as the FDCPA if they confuse unsophisticated consumers and set time lines that contradict or over shadow the time lines provided in the FDC for validation of debts.
Under the FDCPA, a debt collector’s dunning letter to a debtor must contain:
(1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after 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; (4) a statement that 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 and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, 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. 15 U.S.C. § 692g(a).
The FDCPA also dictates that“[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” 15 U.S.C. § 1692g(b).
The 7th Circuit in a new opinion has rejected a claim that a dunning letter from a debt collector for Capital One was overshadowed a consumer’s notice rights under the FDCP. In Zemeckis v. Global Credit Collection Corp., Capital One retained Global, a collection agency, which sent plaintiff, its debtor, a dunning letter with notice of her debt validation rights. Plaintiff claimed that the content as a whole over-shadowed the debt validation notice, violating the Fair Debt Collection Practices Act, 15 U.S.C. 1692g. The district court dismissed, stating that language like “act now” is only puffery and that placement of the notice on the back of the letter complies with the Act. The Seventh Circuit affirmed, upholding the district court’s rejection of a request to conduct a consumer survey to prove that the letter was confusing. However, the 7th Circuit recognized that in cases where it is not easily apparent that the dunning letter contains mere puffery consumer surveys are useful. It also recognized that placing deadlines with exact time frames such as one week to act or referencing set number of days to act that do not conform with the FDCPA timelines do violate the FDCPA.
You can see the entire 7th Circuit opinion in Zemeckis v Global Credit Collection Corp. by downloading the file here.
Continue reading ›