Pollard v. Law Office of Mandy L. Spaulding

United States Court of Appeals
For the First Circuit

No. 13-2478

ROBBIE POLLARD,

Plaintiff, Appellee,

v.

LAW OFFICE OF MANDY L. SPAULDING,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Baldock* and Selya,
Circuit Judges.

Scott Douglas Burke, Tory A. Weigand, Alan E. Brown, and
Morrison Mahoney LLP on brief for appellant.
Sergei Lemberg and Lemberg Law, LLC on brief for appellee.

September 8, 2014

*
Of the Tenth Circuit, sitting by designation.
 SELYA, Circuit Judge. This is one of the relatively rare

occasions on which we have been asked, in a non-class-action

setting, to visit the precincts patrolled by the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.

Specifically, we are tasked with determining whether a particular

collection letter satisfies section 1692g(b) of the FDCPA, which

requires that a debt collector's collection activities and

communications "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." Id. § 1692g(b).

The district court concluded that the collection letter at issue

here fell short of this mark.

We hold that, for FDCPA purposes, a collection letter is

to be viewed from the perspective of the hypothetical

unsophisticated consumer. Applying this standard, we affirm the

judgment below.

I. BACKGROUND

The raw facts, memorialized by the parties' pleadings,

are undisputed. At some indeterminate point in time, plaintiff-

appellee Robbie Pollard, who is a "consumer" within the meaning of

15 U.S.C. § 1692a(3), allegedly incurred a debt of approximately

$611.84. The Law Office of Mandy L. Spaulding, the defendant and

appellant here, subsequently was retained to collect the debt. In

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carrying out this assignment, the defendant was operating as a

"debt collector" as defined in section 1692a(6).

On October 23, 2012, the defendant sent the plaintiff a

collection letter (a copy of which appears as an appendix to this

opinion). This letter was typed on the defendant's letterhead over

the signature "Mandy L. Spaulding, Esq." The letter explained that

the defendant had been retained to collect the monies allegedly

owed and was "not inclined to use further resources attempting to

collect this debt before filing suit." It further explained that

the defendant planned to collect the debt "through whatever legal

means are available and without [the plaintiff's] cooperation." It

went on to inform the plaintiff that the defendant was "obligated

to [its] client to pursue the next logical course of action without

delay" and described how the plaintiff could make payments.

Below the signature block, in smaller print, were several

paragraphs preceded by the caption "NOTICE OF IMPORTANT RIGHTS."

These paragraphs contained the statutorily mandated notice of

consumer rights. See id. § 1692g(a)(3)-(5).

Following her receipt of this collection letter, the

plaintiff contacted the defendant to dispute ownership of the debt

and request validation. Approximately one month after the

collection letter arrived, the plaintiff sued. In her complaint,

she asserted that the defendant had violated sundry provisions of

the FDCPA, including section 1692g. The defendant answered and,

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several months later, moved for judgment on the pleadings. See

Fed. R. Civ. P. 12(c). The district court concluded, among other

things, that the collection letter violated section 1692g as a

matter of law.1 See Pollard v. Law Office of Mandy L. Spaulding,

967 F. Supp. 2d 470, 477 (D. Mass. 2013). The parties thereafter

agreed upon the damages and attorneys' fees recoverable by the

plaintiff. A final judgment entered, which preserved the

defendant's right to appeal from the ruling that the collection

letter transgressed section 1692g. This timely appeal followed.

II. ANALYSIS

Congress enacted the FDCPA to eliminate "the use of

abusive, deceptive, and unfair debt collection practices." 15

U.S.C. § 1692(a). The Act not only proscribes certain invidious

methods of debt collection but also requires debt collectors to

furnish to consumers a notice, commonly called a "validation

notice," limning certain rights and information. See id.

§ 1692g(a). Among other things, a debt collector must inform the

consumer that she has thirty days from receipt of the validation

notice within which to dispute the debt before it is assumed to be

valid and that if she disputes the debt, the debt collector will

provide her with verification of the debt's validity. See id.

§ 1692g(a)(3)-(4). If the consumer either disputes the debt or

1
At the same time, the court ruled on other issues. Those
rulings are immaterial here, and it would serve no useful purpose
to chronicle them.

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requests information concerning the identity of the original

creditor within this thirty-day period, the debt collector must

suspend collection efforts until it supplies such data. See id.

§ 1692g(b).

Prior to 2006, the FDCPA did not expressly require that

the validation notice convey the consumer's rights in a

nonconfusing manner. Courts nevertheless glossed the statute with

such a requirement and routinely interpreted section 1692g to bar

the use of collection letters that overshadow or contradict the

validation notice. See McMurray v. ProCollect, Inc., 687 F.3d 665,

668 n.1 (5th Cir. 2012). The Financial Services Regulatory Relief

Act of 2006 removed any lingering doubt on this score: it amended

the FDCPA to make pellucid 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."

See Pub. L. No. 109-351, § 802(c), 120 Stat. 1966, 2006-07

(codified at 15 U.S.C. § 1692g(b)).

Against this backdrop, we turn first to a late-blooming

issue that implicates our subject-matter jurisdiction. After

clearing that hurdle, we address the defendant's other claims of

error.

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 A. Standing.

The defendant argues for the first time in its reply

brief that the plaintiff lacks Article III standing. In most

cases, an argument advanced so late in the day and in so

perfunctory a fashion would be forfeit. See, e.g., Merrimon v.

Unum Life Ins. Co., ___ F.3d ___, ___ (1st Cir. 2014) [Nos. 13-

2128, 13-2168, slip op. at 6]; McCoy v. Mass. Inst. of Tech., 950

F.2d 13, 22 (1st Cir. 1991). But there are exceptions to this

general rule, and the defendant's lack of standing argument comes

within such an exception. After all, whether a plaintiff has

Article III standing implicates a federal court's subject-matter

jurisdiction and, thus, must be resolved no matter how tardily the

question is raised. See Merrimon, 755 F.3d at ___ [slip op. at 6-

7]; see also Vander Luitgaren v. Sun Life Assurance Co., ___ F.3d

___, ___ (1st Cir. 2014) [No. 13-2090, slip op. at 5-7] (comparing

constitutional and statutory standing). We turn to that task.

Federal courts are constitutionally empowered to

adjudicate only actual cases and controversies. See U.S. Const.

art. III, § 2; Hollingsworth v. Perry, 133 S. Ct. 2652, 2661

(2013). "A case or controversy exists only when the party

soliciting federal court jurisdiction (normally, the plaintiff)

demonstrates 'such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens

the presentation of issues upon which the court so largely

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depends.'" Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012)

(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). To demonstrate

that she has standing, "a plaintiff must establish each part of a

familiar triad: injury, causation, and redressability." Id.

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).

The defendant suggests that the plaintiff lacks a

constitutionally cognizable injury because she was not flummoxed

about her statutory rights after reading the collection letter, as

evidenced by the fact that she exercised those rights. But this

suggestion gives too short shrift to the well-settled proposition

that "[t]he . . . injury required by Art. III may exist solely by

virtue of 'statutes creating legal rights, the invasion of which

creates standing.'" Warth v. Seldin, 422 U.S. 490, 500 (1975)

(quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973));

see Lujan, 504 U.S. at 578; Havens Realty Corp. v. Coleman, 455

U.S. 363, 373 (1982).

In cases in which a plaintiff's injury stems solely from

the violation of a statute, the nature of the right that the

statute confers is of paramount concern. See Warth, 422 U.S. at

500; Merrimon, ___ F.3d at ___ [slip op. at 9]; Tourgeman v.

Collins Fin. Servs., Inc., 755 F.3d 1109, ___ (9th Cir. 2014) [slip

op. at 8-9]. This principle is leavened by the corollary principle

that Congress cannot confer standing beyond the boundaries of

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Article III, that is, upon individuals who have not suffered a

concrete injury. See Summers v. Earth Island Inst., 555 U.S. 488,

497 (2009). As a result, a plaintiff always must be able to

demonstrate that she suffered some "personal and tangible harm."

Hollingsworth, 133 S. Ct. at 2661.

Section 1692g prohibits debt collectors from sending

collection letters that overshadow or are otherwise inconsistent

with the required validation notice. Debt collectors who

transgress that prohibition are liable to consumers for actual and

statutory damages. See 15 U.S.C. § 1692k. Refined to bare

essence, the FDCPA bestows upon consumers a right not to receive

communications that overshadow or are inconsistent with the

validation notice. Cf. Tourgeman, 755 F.3d at ___ [slip op. at 6,

9, 12] (characterizing analogous right conferred by section 1692e

as the right not to be the target of misleading communications).

The invasion of a statutorily conferred right may, in and

of itself, be a sufficient injury to undergird a plaintiff's

standing even in the absence of other harm. See Havens, 455 U.S.

at 373-74 (holding that plaintiff suffered cognizable injury when

defendant violated statutory right to truthful housing information,

notwithstanding plaintiff's lack of any intention to rent or

purchase home). That is the case here: the FDCPA does not require

that a plaintiff actually be confused. See Jacobson v. Healthcare

Fin. Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008). Seen in this

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light, the absence of confusion is irrelevant to the standing

inquiry.

The short of it is that the plaintiff adequately alleged

that her personal right was violated when she received the

collection letter. That comprised an injury attributable to the

defendant's actions — an injury that will be redressed by an award

of damages. No more is exigible to confirm the plaintiff's Article

III standing.

B. The Merits.

The defendant protests that its collection letter neither

overshadows nor contradicts the validation notice.2 The district

court thought otherwise, and we review that court's entry of

2
Although section 1692g refers to "inconsistencies," the case
law typically refers to "contradictions." Because the 2006
amendments to the FDCPA codified existing case law, courts tend to
treat those terms interchangeably. See McMurray, 687 F.3d at 669
n.2. We follow this praxis.

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judgment on the pleadings de novo.3 Mass. Nurses Ass'n v. N. Adams

Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006).

This court has not previously had the occasion to

consider from whose perspective a collection letter should be

viewed for FDCPA purposes. In confronting this question, we are

not navigating uncharted waters. Two of our sister circuits have

addressed this issue and concluded that a collection letter is to

be viewed from the perspective of the hypothetical unsophisticated

consumer.4 See Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051,

3
The parties agree, so we assume for present purposes
(without deciding), that whether a collection letter overshadows or
is inconsistent with a validation notice is a question of law.
However, there is no consensus on this point. While the weight of
authority holds that the question of whether a collection letter
overshadows or is inconsistent with a validation notice is one of
law, see, e.g., Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504,
508 n.2 (6th Cir. 2007); Wilson v. Quadramed Corp., 225 F.3d 350,
353 n.2 (3d Cir. 2000), at least one court of appeals has concluded
that such a question is one of fact to be resolved by a jury, see
Walker v. Nat'l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999).
Neither party has addressed this split in authority, and we refrain
from delving into the issue without the benefit of either briefing
or developed argumentation.
4
A majority of the circuits applies a "least sophisticated
consumer" standard. See, e.g., Fed. Home Loan Mortg. Corp. v.
Lamar, 503 F.3d 504, 509 (6th Cir. 2007); Terran v. Kaplan, 109
F.3d 1428, 1431-32 (9th Cir. 1997); Russell v. Equifax A.R.S., 74
F.3d 30, 34 (2d Cir. 1996); cf. Chiang v. Verizon New Eng. Inc.,
595 F.3d 26, 42 (1st Cir. 2010) (referencing, though having no
occasion to adopt or apply, the least sophisticated consumer
standard). Labels aside, there appears to be little difference
between this formulation and the "unsophisticated consumer"
formulation. See Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996)
("[T]he unsophisticated consumer standard is a distinction without
much of a practical difference in application."). We adopt the
unsophisticated consumer formulation to avoid any appearance of
wedding the standard to the "very last rung on the sophistication

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1055 (8th Cir. 2002); Gammon v. GC Servs. Ltd. P'ship, 27 F.3d

1254, 1257 (7th Cir. 1994). We think that this reading captures

the spirit of the statute. Accordingly, we hold that, for FDCPA

purposes, a collection letter is to be viewed from the perspective

of the hypothetical unsophisticated consumer.

The standard protects "all consumers, including the

inexperienced, the untrained and the credulous." Taylor v. Perrin,

Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997); see

Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). Even so,

the standard remains an objective one, which preserves an element

of reasonableness. A debt collector will not be held liable based

on an individual consumer's chimerical or farfetched reading of a

collection letter. See Taylor, 103 F.3d at 1236.

With this holding in place, we turn to the question of

whether the collection letter sent by the defendant, when viewed

through the eyes of the unsophisticated consumer, overshadows or is

inconsistent with the validation notice. We note at the outset

that, in the section 1692g milieu, courts do not always distinguish

between violations based on the overshadowing of a validation

notice and violations based on inconsistencies. Overshadowing is

a phenomenon that can take diverse forms. Typically, however,

overshadowing is based upon the visual characteristics of a

ladder." Gammon v. GC Servs. Ltd. P'Ship, 27 F.3d 1254, 1257 (7th
Cir. 1994).

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collection letter, such as when a letter demands payment in large,

attention-grabbing type and relegates the validation notice to fine

or otherwise hard-to-read print. See McMurray, 687 F.3d at 671;

Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997).

Inconsistencies, too, can occur in various shapes and

sizes. They may be either literal or apparent. See, e.g., Peter

v. GC Servs. L.P., 310 F.3d 344, 349 (5th Cir. 2002); Bartlett, 128

F.3d at 500-01. Most frequently, material inconsistencies arise

when a collection letter demands immediate payment or payment in a

definite period shorter than thirty days. See, e.g., McMurray, 687

F.3d at 670; Peter, 310 F.3d at 349.

Whether the controversy centers on overshadowing or

inconsistency, the inquiry reduces to whether a particular

collection letter would confuse the unsophisticated consumer. See

Bartlett, 128 F.3d at 500-01. This inquiry is to be conducted with

a recognition that confusion can occur in a myriad of ways, such as

when a letter visually buries the required validation notice,

contains logical inconsistencies, fails to explain an apparent

inconsistency, or presents some combination of these (or similar)

vices. See id. In the last analysis, a collection letter is

confusing if, after reading it, the unsophisticated consumer would

be left unsure of her right to dispute the debt and request

information concerning the original creditor. See Russell v.

Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996). The emphasis, then,

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is on practical effect. See Graziano v. Harrison, 950 F.2d 107,

111 (3d Cir. 1991) (explaining that "statutory notice must not only

explicate a debtor's rights; it must do so effectively").

In conducting the requisite inquiry, we examine the

entire collection letter. See Peter, 310 F.3d at 349; McStay v.

I.C. Sys., Inc., 308 F.3d 188, 191 (2d Cir. 2002). Doing so, we

conclude — as did the court below — that the collection letter in

this case is confusing. The letter conveys the message that the

defendant is not inclined to do anything other than file a lawsuit

and that it plans to pursue such a course of action "without

delay." At bottom, the letter seems to threaten immediate

litigation. We think that, implicit in this threat, is the idea

that litigation can be avoided only if payment is made forthwith.

That idea is reinforced by the fact that the letter appears on law

firm letterhead and bears the signature of an attorney.

To be sure, the letter does contain the required section

1692g(a) disclosures, including a statement that the consumer may

dispute the debt in writing within thirty days. While Congress for

some reason did not require that the notice actually explain what

the effect of disputing a debt would be (putting the brakes on

collection efforts until a proper response is sent by the debt

collector, see 15 U.S.C. § 1692g(b)), we have no doubt that a debt

collector is not allowed to suggest that the effect of disputing a

debt is different than what the FDCPA provides. To give the

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required notice of a right to dispute the debt while simultaneously

and inaccurately disparaging the benefit of the right is to cause

the consumer to think that the right to dispute has less benefit

than is actually the case.

Here, this is precisely what the unsophisticated consumer

would read the letter as doing. The letter clearly and repeatedly

implies that debt collection actions are going to proceed

forthwith, come what may. Of utmost significance in this regard is

the notice of rights itself. Although the notice is arguably

legible, it nonetheless contributes greatly to the incipient

confusion. Critically, the second sentence of the second paragraph

of the notice reads "we further inform you that despite the fact

that you have a thirty (30) day period to dispute the debt may not

preclude [sic] the filing of legal action against you prior to the

expiration of the period."5 With its hopelessly scrambled syntax,

this sentence is easily read as suggesting that a lawsuit is going

to proceed without delay whether the consumer disputes the debt or

not. The other affirmative statements in the text of the letter to

5
Our dissenting brother makes the point that this sentence is
garbled because of what he regards as a typographical error. But
the source of the garbling is irrelevant to our inquiry. It is the
unsophisticated consumer's perception of the letter, not the debt
collector's intent, that controls a determination of whether a
collection letter overshadows or contradicts a validation notice.
See Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.
2010) ("To recover damages under the FDCPA, a consumer does not
need to show intentional conduct on the part of the debt
collector.").

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the effect that the writer is "not inclined to use further

resources attempting to collect this debt before filing suit" and

is going to "pursue the next logical course of action without

delay" reinforce this reading.

In this manner, the letter effectively overshadows the

disclosed right to dispute by conveying an inaccurate message that

exercise of the right does not have an effect that the statute

itself says it has. We believe that when Congress required a debt

collector to give notice of this right and provided that conduct

overshadowing the disclosure of such right shall not be undertaken,

it prohibited conduct such as this — conduct that would dupe the

unsophisticated consumer into believing that disputing a debt could

not forestall a suit.

The defendant vigorously resists the conclusion that its

collection letter is confusing. We have examined the defendant's

arguments and find them wanting.

To begin, the defendant points out that the thirty-day

validation period is not a grace period. This is true as far as it

goes, but it does not get the defendant very far. The FDCPA makes

plain that a debt collector's right to seek payment coexists with

a consumer's right to notice. See 15 U.S.C. § 1692g(b) (stating

that "[c]ollection activities and communications that do not

otherwise violate this subchapter may continue during the 30-day

period" unless the consumer exercises her validation rights). The

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coexistence of these rights "create[s] a breeding ground for claims

for unsophisticated-debtor confusion" because consumers are often

faced with two seemingly contradictory statements: that they may

dispute the debt and that they must pay immediately. Durkin v.

Equifax Check Servs., Inc., 406 F.3d 410, 416 (7th Cir. 2005).

But the FDCPA pairs a debt collector's right to pursue

payment with a corresponding obligation to ensure that its

communications are not confusing. Consequently, when undertaking

collection, a debt collector bears the burden of apprising the

consumer of her validation rights in an effective manner.

Next, the defendant asseverates that its collection

letter is not confusing because it does not contain an express

demand for payment within thirty days. In support of this

asseveration, the defendant draws upon case law distinguishing

between letters that demand payment immediately or within thirty

days and letters that contain open-ended demands for payment. As

we explain below, this sets up a false dichotomy.

Unexplained demands for payment immediately or within

thirty days confuse the unsophisticated consumer because they

contain an apparent contradiction that renders her unsure of her

rights. See Peter, 310 F.3d at 349. Such collection letters can

readily be distinguished from those that merely contain "puffery"

(such as encouragement to a consumer to "act now") or that do no

more than explain the consequences of a failure to pay. Letters of

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this latter stripe normally are found not to be confusing. See,

e.g., Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632,

636 (7th Cir. 2012). So, too, open-ended collection letters that

demand payment without reference to any temporal framework

typically do not violate section 1692g. See, e.g., Peter, 310 F.3d

at 349-50.

The distinction that the defendant envisions between

these two lines of cases does not aid its cause. The collection

letter in this case bears more of a resemblance to a demand for

immediate payment than to mere open-ended puffery. Although the

letter does not demand immediate payment in haec verba, it not so

subtly threatens immediate litigation and tells the plaintiff how

to make payments. The clear implication is that the plaintiff can

stave off suit only by ignoring her validation rights and making

payment.

In any event, the defendant places undue weight on the

perceived distinction between an express demand for immediate

payment and anything short of that. Overshadowing is rarely a

black-or-white proposition: there are many shades of gray. It is

impossible to catalogue the manifold ways, some subtle and some

not, in which a debt collector may attempt to circumnavigate

section 1692g. See Russell, 74 F.3d at 35; Miller v. Payco-Gen.

Am. Credits, Inc., 943 F.2d 482, 485 (4th Cir. 1991). Practical

effect is what counts, and we are confident that this collection

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letter — despite the fact that it does not contain an explicit

demand for immediate payment — would confuse the unsophisticated

consumer as to her rights.

The defendant also contends that the fact that this

collection letter was sent by an attorney is irrelevant. In the

defendant's view, the source of a letter has no bearing on the

clarity of the validation notice. We do not agree.

We share the view of the Third Circuit that "[u]nder the

[FDCPA], attorney debt collectors warrant closer scrutiny because

their abusive collection practices are more egregious than those of

lay collectors." Campuzano-Burgos v. Midland Credit Mgmt., Inc.,

550 F.3d 294, 301 (3d Cir. 2008) (internal quotation marks

omitted). Thus, "[a]n unsophisticated consumer, getting a letter

from an attorney, knows the price of poker has just gone up."

Avila, 84 F.3d at 229 (internal quotation marks omitted). An

attorney's imprimatur conveys authority and induces a consumer to

act more quickly. See id. With this in mind, it would be naive

for a court to ignore the source of a collection letter. That the

letter in this case was signed by an attorney reinforces the

perception that it threatens immediate litigation.6

The defendant complains that the district court should

not have faulted it for not including "transitional" language (that

6
Although the cases on which we rely for this conclusion
involve claims under section 1692e, we think that the principles
that they articulate have more general application.

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is, language explaining the interface between its threat of suit

and the plaintiff's rights) in its collection letter. It correctly

points out that the FDCPA does not require any such language, and

it laments that the court below gratuitously grafted this

additional requirement onto the statute. This plaint contains more

cry than wool.

A debt collector is, of course, free to demand immediate

payment or (sometimes) even to file suit during the thirty-day

validation period. But pursuing such a multi-directional course

can lead to confusion,7 and debt collectors remain firmly bound by

the FDCPA's command not to overshadow or be inconsistent with the

validation notice. See Ellis v. Solomon & Solomon, P.C., 591 F.3d

130, 136-37 (2d Cir. 2010). The simplest way for a debt collector

to ensure that its payment demand does not create confusion is to

provide a brief, lucid explanation of how collector and consumer

rights interact during the validation period. Two courts of

appeals have gone so far as to offer sample language. See Savino

v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998); Bartlett,

128 F.3d at 501-02.

Although the FDCPA does not require such an explanation,

it does require that collection letters not be confusing. A debt

7
One is reminded of the aphorist Stephen Butler Leacock's
tale of a man who "flung himself upon his horse and rode madly off
in all directions." Stephen Leacock, Gertrude the Governess: or,
Simple Seventeen, in Nonsense Novels 71, 73 (John Lane 1920)
(1911).

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collector who chooses to brandish threats of litigation must take

pains to ensure that those threats do not obnubilate or undercut

the required validation notice. In evaluating whether a collection

letter breeds confusion, a district court thus acts well within its

proper province in noting that a debt collector could easily have

included explanatory language but chose not to do so. So it is

here.

Relatedly, the defendant argues that its collection

letter contains language sufficient to dispel any confusion. To be

specific, it argues that the second sentence of the second

paragraph of its validation notice adequately explains the

interaction between its right to initiate litigation and the

plaintiff's validation rights. But as we already have explained,

the sentence itself is unintelligible and, thus, obfuscates more

than it clarifies. Moreover, the sentence only reinforces the

defendant's intent to file suit forthwith, regardless of whether or

not the plaintiff were to seek validation of the debt. That

emphasis hardly advances the defendant's argument.

There is one final matter. Judge Baldock's dissent

emphasizes that the information conveyed by the defendant's

collection letter is true and posits that a mere typographical

error should not result in a statutory violation. To buttress his

point, Judge Baldock offers an explanation of how the letter can be

read so that it does not violate section 1692g.

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 But it is not a federal judge's ability to parse a

collection letter with which we are concerned. Instead, it is the

ability of the unsophisticated consumer. Moreover, that the

information is accurate does not render it nonconfusing as

presented. See Bartlett, 128 F.3d at 500-01 (explaining that the

failure to clarify an apparent contradiction is just as bad as an

outright contradiction). That a debt collector may threaten

litigation in a nonconfusing manner without violating section 1692g

does not resolve this case. Absent the garbled sentence in the

second paragraph of the validation notice, the letter here might

well have satisfied section 1692g. However, when the garbled

sentence is piled on top of the letter's compendium of threats, we

continue to believe that the effect on the unsophisticated consumer

would be to confuse.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- Dissenting Opinion Follows -

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 BALDOCK, Circuit Judge, dissenting. As always, Judge

Selya's prose is eloquent and his analysis thorough. Regrettably,

I cannot join, as I do not believe this letter violated § 1692g.

Defendant's letter did not explicitly demand immediate

payment or payment sooner than thirty days, and Defendant included

Plaintiff's rights to dispute the debt and to request information

on the front of the only page, in legible font. This much is

undisputed and, in my view, should settle the debate as it

distinguishes virtually all cases detailing § 1692g violations.8

Nevertheless, this court finds a statutory breach.

The court, as I read it, initially reasons Defendant

implicitly demanded immediate payment by expressing an intent to

litigate immediately. But, the court later admits — as it must —

that Defendant could indeed litigate immediately without violating

§ 1692g. See Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997)

("The debt collector is perfectly free to sue within thirty

days."). Going further, Plaintiff herself confesses "[d]ebt

collectors are free to tell consumers that, absent payment, the

collector will file a lawsuit without delay." Resp. Br. at 5

8
Compare Miller v. Payco-Gen. Am. Credits, Inc., 943 F.2d
482, 483 (4th Cir. 1991) (violation: form stated "THIS IS A DEMAND
FOR IMMEDIATE FULL PAYMENT" in large, red, and bold type, and "PAY
US — NOW" with the "NOW" taking up a third of a page), and Bartlett
v. Heibl, 128 F.3d 497, 503 (7th Cir. 1997) (violation: letter
demanded payment or contact "within one week"), with McMurray v.
ProCollect, Inc., 687 F.3d 665, 670 (5th Cir. 2012) (no violation:
"letter contain[ed] no demand for payment, much less a demand for
payment within the 30–day statutory contest period").

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(emphases added); see also Zemeckis v. Global Credit & Collection

Corp., 679 F.3d 632, 636–37 (7th Cir. 2012) ("Global Credit's

repeated threat of legal action . . . fails to convert the letter's

puffery into a contradictory payment deadline."). So, if debt

collectors are free to litigate immediately, and free to tell

consumers they will litigate immediately sans payment, how is this

letter improper? Plaintiff theorizes collectors "must use

transitional or explanatory language" when they threaten prompt

litigation, lest the threat negate the disclosure of Plaintiff's

rights to dispute and to gather information. Yet the court

(rightly) rejects this theory: "[T]he FDCPA," it writes, "does not

require any such language." Apparently, a litigation threat and a

disclosure of consumer rights can coexist absent explanation — so

long as the letter does not otherwise confuse. So, aside from

lawful litigation threats, how would this letter confuse?

The court gives two reasons. First, the court finds

significant Defendant's use of law firm letterhead and a lawyer's

signature. The statute does not mention this, however, and the

court cites no case law directly on point, despite an abundance of

existing § 1692g cases.9 Second, the court opines that a sentence

in the final paragraph of the validation notice is

9
The court believes § 1692e cases are applicable, but I am
not convinced. Unlike § 1692g, several § 1692e claims explicitly
discuss attorneys and the legal context. See, e.g., § 1692e(3)
("The false representation . . . that any communication is from an
attorney [violates § 1692e].").

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"unintelligible." I do not see it that way. The sentence in

question has a single typo.10 I am not inclined to find a statutory

violation based on an insubstantial typo. More importantly, rather

than confuse, the sentence merely lays out the same two

propositions discussed above: (1) the consumer has "a thirty (30)

day period to dispute the debt", which is true, and (2) Defendant

may still file a lawsuit within this thirty-day window, which is

also true. Put another way: The aspect of this letter most relied

upon to hold a consumer would be confused about her right to

dispute the debt is a sentence that reiterates a consumer has a

right to dispute the debt. I fail to discern the problem.

In conclusion, the letter as a whole is relatively

straightforward and does not "overshadow" or contradict the

disclosure of consumer rights. Even an unsophisticated consumer

would not be confused here. See Fed. Home Loan Mortg. Corp. v.

Lamar, 503 F.3d 504, 510 (6th Cir. 2007) (least sophisticated

consumer would read material "carefully" and "in its entirety").

I respectfully dissent.

10
It appears plain to me Defendant simply forgot to delete
the word "despite" from the sentence, perhaps after a revision.

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