The U.S. District Court for the District of Oregon recently held that a notice provided pursuant to 15 U.S.C. 1692g that also contained additional language requesting that a dispute of the debt "please" be sent in writing violated the federal Fair Debt Collection Practices Act (FDCPA).
In so ruling, the District Court held that such additional language overshadows or is inconsistent with a consumer's right to orally dispute the debt within the 30 day period under 15 U.S.C. 1692g, and constitutes a false representation or deceptive means to collect or attempt to collect a debt under the FDCPA.
A copy of the opinion is available at: Link to Opinion
A debt collector sent a debt validation notice to a debtor. In addition to the language required under 15 U.S.C. 1692g, the notice also contained additional language stating "If you dispute any account referenced in this letter, please send all information regarding the dispute to [address]."
The debtor filed suit alleging that the request to mail information regarding a dispute violates the FDCPA because it overshadows or is inconsistent with the consumer's right to dispute the debt orally, and that it amounts to an attempt to collect a debt by false or deceptive means.
The defendant moved to dismiss both claims. The District Court denied the motion.
Although ruing on a motion to dismiss, the Court held that the additional language requesting that the debtor disputing the debt "please" provide his or her dispute in writing overshadows or is inconsistent with the consumer's right to dispute the debt orally, and would likely mislead the least sophisticated consumer into thinking a dispute would need to be in writing and accompanied by supporting documentation.
As you may recall, for notices required under 15 U.S.C. 1692g, the FDCPA prohibits any language or statements that overshadow or are inconsistent with the disclosure of the consumer's right to dispute the debt within 30 days, including statements in the notice itself, and with the consumer's right to dispute the debt orally or in writing.
The FDCPA also prohibits the use of false, deceptive, or misleading representations in debt collection communications. In addition, the Ninth Circuit uses the least sophisticated consumer standard in applying the requirements of the FDCPA.
The District Court distinguished defendant's reliance on Riggs v. Prober & Raphael, 681 F. 3d 1097 (9th Cir. 2012), wherein a 15 U.S.C. 1692g notice simply reversed the order in which it stated the consumer's rights to dispute the debt and the reversal of order could be interpreted to imply a dispute must be in writing. In Riggs, the Ninth Circuit held that any confusion from the reversed order stemmed at least in part from the language of the FDCPA itself.
The Court held that the 1692g notice here, however, contained additional language requesting that the dispute "please" be sent in writing, and any confusion did not therefore stem from the FDCPA itself, but from defendant's inclusion of the additional language.
Accordingly, the District Court denied the motion to dismiss.
Ralph T. Wutscher
Maurice Wutscher LLP
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