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FDCPA Letter Claim Dismissed in Part under 1692e(5)

 

Link: Cadiz, v. CREDENCE RESOURCE MANAGEMENT, LLC, 17-cv-1949 (N.D. Ill., Aug. 24, 2018)

Judge Andrea R. Wood granted in part and denied in part a debt-collector’s motion to dismiss a claim under the Fair Debt Collection Practices Act alleging that the following language violated 15 U.S.C. 1692(e):

The above listed account owing to AT&T Mobility has been assigned to Credence Resource Management, LLC for collections. This account is currently delinquent and due in full. We would like to resolve this matter amicably, therefore please send your payment for the above amount. . . .

Plaintiff alleged the above language violated § 1692e of the FDCPA by threatening the possibility of a lawsuit when Credence did not actually intend to take any legal action.

The court allowed the general e and (e)10 claim to proceed, but dismissed the e(5) claim.

Credence’s statements are not clearly misleading. But the Court cannot say that they in no way could be interpreted as misleading to the unsophisticated consumer. Rather, the letter is properly categorized as the second type of claim—for it is plausible that the use of the word “amicably” could mislead the unsophisticated consumer into believing that litigation was a possibility if the debt were left unresolved. See McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1022 (7th Cir. 2014) (finding that the use of the phrase “offer to settle” in a collection letter seeking payment of a time-barred debt could mislead the unsophisticated consumer to believe that the debt was legally enforceable, even though the possibility of legal action was not mentioned in the letter.)

The court drew a strong distinction between the letter’s language above and the language in the letter in the case of  Clark v. Retrieval Masters Creditors Bureau, Inc., 185 F.R.D. 247, 251 (N.D. Ill. 1999), where the letter said:

The [American Medical Collection Agency] has been authorized to take appropriate legal measures to obtain payment.” and “[T]his is your final opportunity to settle your account without incurring additional problems.

 

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