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Debt collectors need not affirm affirmative statements.

July 1, 2017
Dick v. Enhanced Recovery Co., LLC, 15-cv-2631, 2016 U.S. Dist. LEXIS 135789 (E.D.N.Y. Sep. 28, 2016)

The United States District Court for the Eastern District of New York recently clarified that it is not false, deceptive, or misleading or a violation of Section 1692e of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et al., when a debt collector states in a collection letter that the “non-interest charges and fees” are “$0.00” without explaining that this amount will not increase. The plaintiff unsuccessfully attempted to argue that the language regarding the “non-interest charges and fees” being “$0.00” was allegedly misleading and violated Section 1692e of the FDCPA because it could cause the least sophisticated consumer to believe that non-interest charges and fees could accrue at some point in the future. In other words, the plaintiff attempted to argue that, in addition to stating that non-interest charges and fees for a debt are $0.00, the debt collector should have affirmatively stated that the non-interest charges and fees would not increase at any point in the future. The court reasoned that the language was not misleading because it was accurate; the plaintiff’s non-interest charges and fees for his debt were $0.00. The court distinguished this case from Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016), in which the Second Circuit held that it was misleading for a debt collector to list the amount owed without disclosing the fact that the amount owed would, in fact, continue to increase. The court explained that the “key distinction” was that the plaintiff did not allege that non-interest charges were actually accruing at the time that the defendant stated that those charges were $0.00. Furthermore, the plaintiff failed to allege that the balance stated in the collection letter was not a complete and accurate representation of the amount owed, or that it may increase over time due to interest and fees. Instead, the plaintiff merely alleged that the language could cause the least sophisticated consumer to believe that non-interest charges and fees could accrue in the future. The court concluded that the FDCPA does not require a debt collector to provide extra assurance that the facts stated in a collection letter will not change in the future. 

 

Case Law Alerts, 3rd Quarter, July 2017

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Andrew M. Schwartz
Chair - Consumer Financial Services Litigation and Compliance Group
(215) 575-2765
amschwartz@mdwcg.com

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