In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1143
SANDRA D. WILLIAMS,
Plaintiff-Appellant,
v.
OSI EDUCATIONAL
SERVICES, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 285—Patricia J. Gorence, Magistrate Judge.
____________
ARGUED SEPTEMBER 11, 2007—DECIDED OCTOBER 10, 2007
____________
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Sandra Williams filed this action
in the district court on behalf of herself and a putative
class. She sought relief under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692k (2000).1 The
district court granted the defendant, OSI Educational
1
The district court had jurisdiction under 28 U.S.C. § 1331. The
parties consented to adjudication by a magistrate judge. See
28 U.S.C. § 636(c); Fed. R. Civ. P. 73(b).
2 No. 07-1143
Services, Inc., (“OSI”), summary judgment. Ms. Williams
then filed a timely appeal to this court.2 For the reasons
set forth in this opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A.
Ms. Williams is a consumer whose debt was incurred
for personal, family or household purposes. See 15 U.S.C.
§ 1692a(5). OSI is a debt collection agency, as defined in 15
U.S.C. § 1692a(6); it was hired by Great Lakes Higher
Education Guaranty Corp. (“Great Lakes”) to collect its
debts. OSI sent Ms. Williams a letter and a debt valida-
tion notice, dated March 28, 2005. The letter, which is set
out as an appendix to this opinion, sought to collect a sum
of $807.89 labeled as “Total Due,” which was the outstand-
ing balance owed to Great Lakes. The letter breaks down
the amount owed as follows:
DATE: 03/28/05
PRINCIPAL: $683.56
INTEREST: $ 16.46
FEES: $107.87
TOTAL DUE: $807.89
The letter further states:
The balance may not reflect the exact amount of inter-
est which is accruing daily per your original agreement
2
Our jurisdiction is based on 28 U.S.C. § 1291.
No. 07-1143 3
with your creditor. Contact us to find out your exact
payout balance.
R.17, Ex. A.
B.
The district court granted OSI’s motion for summary
judgment. It determined that the letter apprised Ms.
Williams of the total amount due, including the amount
of the principal, interest and fees due. The district court
stated that, “[a]lthough the language in the letter does not
exactly track the ‘safe harbor’ wording in Miller [v. McCalla,
Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d
872, 876 (7th Cir. 2000)], the letter clearly advises that
additional interest is accruing on a daily basis and that,
therefore, additional interest may be added.” R.28 at 6.
Comparing this case to Taylor v. Cavalry Investment, L.L.C.,
365 F.3d 572 (7th Cir. 2004), the district court took the
view that the letter complied with the statute because
OSI’s “letter states the amount of the debt clearly enough
so that an unsophisticated recipient would not misunder-
stand it.” R.28 at 6-7.
II
DISCUSSION
Ms. Williams submits that there is an issue of material
fact as to whether OSI’s letter clearly states the amount of
the debt, as required by the FDCPA. In examining that
contention, we begin with the wording of the statute. The
FDCPA requires that debt collectors state “the amount of
the debt” that they are seeking to collect from the con-
sumer. 15 U.S.C. § 1692g(a)(1). The debt collector’s letter
must state the amount of the debt “clearly enough that the
4 No. 07-1143
recipient is likely to understand it.” Chuway v. Nat’l Action
Fin. Servs. Inc., 362 F.3d 944, 948 (7th Cir. 2004); see also
Taylor, 365 F.3d at 574. To ensure that this statutory com-
mand is implemented properly, we must evaluate the
letter to determine whether it causes any “confusion” or
“misunderstand[ing]” as to the amount due. Taylor, 365
F.3d at 575-76. Our test is an objective one. See Durkin v.
Equifax Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005).
In making this determination, we evaluate the letter
from the perspective of an “unsophisticated consumer or
debtor.” Id. The unsophisticated consumer is “uninformed,
naive, [and] trusting,” but possesses “rudimentary knowl-
edge about the financial world, is wise enough to read
collection notices with added care, possesses ‘reasonable
intelligence,’ and is capable of making basic logical deduc-
tions and inferences.” Pettit v. Retrieval Masters Creditor
Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000); see also
Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003). Notably,
we have rejected explicitly the notion that we should
employ the least sophisticated debtor standard, the “very
last rung on the sophistication ladder.” Pettit, 211 F.3d at
1060 (internal quotation marks omitted); see also Gammon v.
GC Servs., Ltd. P’ship, 27 F.3d 1254, 1257 (7th Cir. 1994). In
short, we must determine whether the letter “[c]ould
well confuse a substantial number of recipients.” Taylor,
365 F.3d at 575.
In undertaking our review, we must keep in mind the
procedural framework in which the case comes to us. The
general principles that guide our review of a case com-
ing to us on summary judgment are well-established. We
review de novo a district court’s decision on a motion for
summary judgment and construe all facts in favor of the
non-moving party, here Ms. Williams. See Durkin, 406 F.3d
at 414. “[S]ummary judgment is appropriate if, on the
No. 07-1143 5
record as a whole, a rational trier of fact could not find for
the non-moving party.” Turner v. J.V.D.B. & Assocs., Inc.,
330 F.3d 991, 995 (7th Cir. 2003) (internal quotation marks
and citation omitted); see also Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). In an FDCPA case, “a mere claim of
confusion is not enough” to prevail on summary judgment.
Rather, the “plaintiff must show that the challenged
language of the letters unacceptably increases the level of
confusion.” Durkin, 406 F.3d at 415 (internal quotation
marks omitted). Our past cases indicate that summary
judgment may be avoided by showing that the letter, on
its face, will “confuse a substantial number of recipients.”
Taylor, 365 F.3d at 575. We also have said that, absent a
showing that the face of the letter will precipitate such a
level of confusion, the “plaintiff must come forward with
evidence beyond the letter and beyond [her] own self-
serving assertions that the letter is confusing in order to
create a genuine issue of material fact for trial.” Durkin, 406
F.3d at 415 (noting that evidence may consist of “carefully
designed and conducted consumer survey[s]” or expert
witnesses); Pettit, 211 F.3d at 1061-62; Walker v. Nat’l
Recovery, Inc., 200 F.3d 500, 502, 504 (7th Cir. 1999); Johnson
v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060-61 (7th Cir.
1999).
Ms. Williams chooses to base her case on the first of these
options. She focuses on the following language from OSI’s
letter:
The balance may not reflect the exact amount of inter-
est which is accruing daily per your original agreement
with your creditor. Contact us to find out your exact
payout balance.
R.17, Ex. A. In her view, there are three reasons why OSI’s
letter would confuse a substantial number of recipients.
We shall examine each.
6 No. 07-1143
First, Ms. Williams argues that the language in OSI’s
letter is more confusing than that in Chuway, which we held
could “confuse a substantial number of recipients.”
Chuway, 362 F.3d at 948. In that case, the letter stated the
“balance” and also contained the following language:
“Please remit the balance listed above in the return enve-
lope provided. To obtain your most current balance
information, please call [phone number].” Id. at 947. We
held that the letter violated the FDCPA. There, the confu-
sion arose because the letter did not state why the “current
balance” would be different than the stated “balance.” The
plaintiff could have thought that “the reference to the
‘current balance’ meant that the defendant was trying
to collect an additional debt [without] telling her how
large an additional debt and thus violating the statute.”
Id. at 947-48. In contrast, the language in OSI’s letter links
the difference between the “total due” and the “exact
payout balance” to the “interest which is accruing daily
per your original agreement with your creditor.” R.17,
Ex. A. OSI’s letter thus provides the information that
created the confusion in the Chuway letter.
Ms. Williams’ second and third arguments are best
treated together. She submits that the letter’s language
leaves open the possibility that the actual amount due is
less than the amount stated on the letter. She further
suggests that the sentence’s use of the present tense makes
it possible to conclude that the stated amount due was
not accurate on the date that the letter was written. In
our view, both these contentions are based on a strained
reading of the sentence. It would be “unrealistic, peculiar,
[and] bizarre” to read OSI’s letter in this way. Durkin, 406
F.3d at 414; see also Pettit, 211 F.3d at 1060 (rejecting
“bizarre” or “idiosyncratic” interpretations). The common
sense reading of the letter is that the balance is accurate
No. 07-1143 7
as of the date the letter is written, but that the amount
due will increase because of interest that is accruing
daily. This construction is supported by the letter’s itemiza-
tion of “PRINCIPAL,” “INTEREST,” “FEES” and “TOTAL
DUE” in a box with, and immediately below, the “DATE.”
Under a natural reading, the language conveys, even to an
unsophisticated consumer, that interest will accrue after
the letter is sent and therefore that the consumer
should call to find out the “exact payout balance.” R.17,
Ex. A (emphasis added). As we said in Chuway, “It is
impossible to draft a letter that is certain to be understood
by every person who receives it; only if it would confuse
a significant fraction of the persons to whom it is di-
rected will the defendant be liable.” 362 F.3d at 948.
We believe that the language in this letter is closer to
the language in Taylor than to the language in Chuway. In
Taylor, the letter similarly set forth the total due and broke
down that total into principal and interest. It further
stated: “[I]f applicable, your account may have or will
accrue interest at a rate specified in your contractual
agreement with the original creditor.” Taylor, 365 F.3d at
574. Three plaintiffs in Taylor had submitted affidavits
stating that this sentence confused them about the amount
of debt that the debt collector was trying to collect. Id. We
held that the language was “entirely clear on its face” and
thus, without further evidence of confusion, the plaintiffs’
affidavits were insufficient to create a genuine issue of
material fact for trial.3 Id. at 575.
3
Also at issue in Taylor, a consolidated appeal, was a letter that
used the following language: “[Y]our account balance may
be periodically increased due to the addition of accrued interest
or other charges as provided in your agreement with your
(continued...)
8 No. 07-1143
As we noted earlier, in opposing summary judgment,
Ms. Williams relied solely on OSI’s letter. She submitted
no other evidence to support her view that OSI’s letter
is confusing. Without more, Ms. Williams’ unsupported
assertion that OSI’s letter is confusing is insufficient to
create a genuine issue of fact as to confusion.
Finally, from what we have said up to this point, it
should be evident that our decision in Miller v. McCalla,
Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872
(7th Cir. 2000), provides no support for Ms. Williams. In
Miller, we dealt with a letter that stated the “unpaid
principal balance” of the loan but added that
this amount does not include accrued but unpaid
interest, unpaid late charges, escrow advances or other
charges for preservation and protection of the lender’s
interest in the property, as authorized by your loan
agreement. The amount to reinstate or pay off your
loan changes daily. You may call our office for com-
plete reinstatement and payoff figures.
Id. at 875. We determined that the letter violated the
statute because it did not state the “amount of the debt,”
as the FDCPA requires. Id. “[I]n an effort to minimize
litigation under the debt collection statute,” we also
3
(...continued)
creditor.” Id. at 575. That letter similarly set forth the total due
and broke down that total into principal and interest. We
held that this language—“the clear statement of a truism”—
complied with the statute. Id.
No. 07-1143 9
established a “safe harbor”4 for complying with this
requirement. Id. at 876. The fact that the letter in this case
does not adopt the language of the safe harbor is of no
consequence. We made clear in Miller that “we do not hold
that a debt collector must use this form of words to avoid
violating the statute.” Id. Although the safe harbor was
offered in an attempt both to bring predictability to this
area and to conserve judicial resources, it is compliance
with the statute, not our suggested language, that counts.
Conclusion
The letter set forth the amount of the debt with suf-
ficient clarity and accuracy to comply with the require-
ments of the statute. Accordingly, we affirm the judgment
of the district court.
AFFIRMED
4
The safe harbor provides:
As of the date of this letter, you owe $____ [the exact
amount due]. Because of interest, late charges, and other
charges that may vary from day to day, the amount due on
the day you pay may be greater. Hence, if you pay the
amount shown above, an adjustment may be necessary after
we receive your check, in which event we will inform
you before depositing the check for collection. For further
information, write the undersigned or call 1-800 [phone
number].
Id. at 876.
10 No. 07-1143
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-07