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FDCPA Overshadowing Claim Denied Where No Demand or Requirement to Pay

Link: Nieto v. MRS ASSOCIATES (N.D. Ill. Nov. 9 2018).

Plaintiff moved for summary judgment on their FDCPA 1692g claim, arguing that the Plaintiff received a second collection letter within the 30 day period they may dispute the debt (the “validation period”).

Plaintiff relied on prior decisions that an “unexplained demand for payment within the thirty-day validation period creates confusion by contradicting, and thus rendering ineffective, the validation notice.” Olson v. Risk Mgmt. Alternatives, Inc.,366 F.3d 509, 512 (7th Cir. 2004).

Plaintiff also relied on Bartlett v. Heibl, 128 F. 3d 497 (7th Cir. 1997),
 in which the Seventh Circuit held that demanding payment within a specific amount of time that is contrary to the 30-day validation period constitutes an FDCPA violation.

Judge Robert Blakey distinguished Bartlett and entered summary judgment for the Defendant:

This Court finds that the second letter is distinguishable from the letter in Bartlett in two crucial ways. First, unlike in Bartlett, there is no “demand” for payment anywhere in the second letter; the second letter neither states that Plaintiff “must” take action, nor threatens legal action if Plaintiff does not take action. [49-3]. Second, the letter in Bartlettcontained both the 30-day validation notice and a threat that the debtor would be sued if he did not take action within 1 week. Bartlett, 128 F.3d at 499. The second letter here, in contrast, merely conveys three settlement options, without mentioning or referencing the 30-day validation notice contained in the first letter. [49-3]. Thus, there is simply no “juxtaposition of the one-week and thirty-day crucial periods” that the Seventh Circuit cautioned against in Bartlett. 128 F.3d at 501.

Posted in FDCPA

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