In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2334
M ISTY M. Z EMECKIS,
Plaintiff-Appellant,
v.
G LOBAL C REDIT & C OLLECTION C ORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 0701—Blanche M. Manning, Judge.
A RGUED M ARCH 27, 2012—D ECIDED M AY 11, 2012
Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
F LAUM, Circuit Judge. In 2010, Misty Zemeckis
(“Zemeckis”) owed Capital One Bank money. Capital
One Bank retained Global Credit & Collection Corp.
(“Global Credit”) to collect her debt. Global Credit, in
turn, sent Zemeckis a dunning letter, which included a
notice of her debt validation rights. Zemeckis claims,
however, that the letter’s content as a whole over-
shadowed the debt validation notice, thereby violating
2 No. 11-2334
Section 1692g of the Fair Debt Collection Practices Act
(the “FDCPA”), 15 U.S.C. § 1692g. The district court
disagreed and dismissed her claim. See F ED. R. C IV.
P. 12(b)(6). She presently appeals, arguing that the dis-
trict court improperly rejected her request to conduct
a consumer survey in order to prove that Global
Credit’s letter was confusing. We affirm the district court.
I. Background
On March 29, 2010, Global Credit, a debt collection
company, sent Zemeckis a letter prompting her to pay
her debt to Capital One Bank. Zemeckis, maintaining
that the letter’s content violated the FDCPA, brought a
class action law suit against Global Credit. The letter’s
insistent language and repeated threats of legal action
against her, she claimed, created a false sense of urgency
that overshadowed statutorily mandated language in-
forming her that she had thirty days to contest the
validity of the debt. In particular, the letter “urge[d]
[her] to take action now,” as well as to “[c]all [Global
Credit’s] office today . . . .” It also stressed Capital One
Bank’s right to pursue legal action against her, warning
that “[her] account now meets . . . [the] guidelines for
legal action” and that “Capital One Bank (USA), N.A. may
be forced to take legal action.” Juxtaposed against the
validation notice, which Global Credit placed on the
back of the debt collection letter, the letter’s language
and structure obscured her legal rights and thwarted
the notice required by the FDCPA.
Zemeckis contended that, in the alternative, the issue
of whether the letter violated the FDCPA was an issue
No. 11-2334 3
of fact, and requested that the district court permit her
to conduct a consumer survey to test the overshadowing
or confusing nature of the letter.
On March 24, 2011, Global Credit filed a motion to
dismiss under Rule 12(b)(6). The district court granted
the motion, finding, first, that our precedent dismisses
language like “act now” as puffery that does not subvert
a debtor’s notice of his thirty-day validation right.
The district court concluded, second, that our case law
upholds the placement of the mandatory validation
notice on the back of a collection letter as comporting
with the FDCPA, especially when clear language on
the front of the letter instructs the debtor to read the
back of the letter for important information. Accordingly,
the district court ruled that the letter was permissible
under the FDCPA as a matter of law and denied Zemeckis’
request to conduct a consumer survey. She appeals.
II. Discussion
We review the grant of a motion to dismiss de novo,
accepting all well-pled facts as true and construing all
inferences in favor of the plaintiff. Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion
to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim satisfies this pleading
standard when its factual allegations “raise a right to
relief above the speculative level.” Twombly, 550 U.S. at
555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404
4 No. 11-2334
(7th Cir. 2010) (“[P]laintiff must give enough details
about the subject-matter of the case to present a story
that holds together.”).
A. Zemeckis Fails to State a Claim Under FDCPA Sec-
tion 1692g
Under Section 1692g, a debt collector’s dunning letter
to a debtor must contain:
(1) the amount of the debt; (2) the name of the creditor
to whom the debt is owed; (3) a statement that unless
the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion
thereof, the debt will be assumed to be valid by the
debt collector; (4) a statement that if the consumer
notifies the debt collector in writing within the
thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain
verification of the debt or a copy of a judgment
against the consumer and a copy of such verification
or judgment will be mailed to the consumer by the
debt collector; and (5) a statement that, upon the
consumer’s written request within the thirty-day
period, the debt collector will provide the consumer
with the name and address of the original creditor,
if different from the current creditor.
15 U.S.C. § 1692g(a). Section 1692g also dictates that
“[a]ny collection activities and communication during
the 30-day period may not overshadow or be incon-
sistent with the disclosure of the consumer’s right to
No. 11-2334 5
dispute the debt or request the name and address of
the original creditor.” 15 U.S.C. § 1692g(b).1
As we evaluate a debt collection letter’s compliance
with the FDCPA, we apply the “unsophisticated con-
sumer” standard. Avila v. Rubin, 84 F.3d 222, 226-27 (7th
Cir. 1996). The letter must be clear and compre-
hensible to an individual who is “uninformed, naïve,
[and] trusting,” Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir.
2003), but not without a rudimentary knowledge about
the financial world or incapable of making basic deduc-
tions and inferences, Wahl v. Midland Credit Mgmt., Inc.,
556 F.3d 643, 645 (7th Cir. 2009). Furthermore, “a signifi-
cant fraction of the population” must find the letter
confusing in order to violate Section 1692g(b)’s prohibi-
tion of inconsistent or overshadowing language. Taylor
v. Cavalry Inv., L.L.C., 365 F.3d 572, 574-75 (7th Cir. 2004).
Zemeckis contends that Global Credit’s letter is con-
fusing to the unsophisticated consumer. The letter
marries commands to act “now” and call Global Credit
“today” with threats of legal action, fostering the im-
1
Section 1692g(b) was amended to proscribe overshadowing
collection activities in 2006. Zemeckis argues that cases
decided before the amendment are therefore irrelevant or less
persuasive. However, the statutory amendment merely
codified a rule that the courts had already instituted. See, e.g.,
Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997) (“[T]he
implied duty to avoid confusing the unsophisticated con-
sumer can be violated by contradicting or ‘overshadowing’
the required notice.”). We, therefore, consider with equal
attention cases decided before or after the 2006 amendments.
6 No. 11-2334
pression that legal consequences are imminent if she
does not pay the debt or contact them posthaste. This
impression, she posits, inevitably and irreparably
obscures her thirty-day window to contest the debt—
notice of which Global Credit included, but unhelp-
fully placed on the letter’s backside.
As a general matter, we view the confusing nature of
a dunning letter as a question of fact, Evory v. RJM Ac-
quisitions Funding L.L.C., 505 F.3d 769, 776 (7th Cir.
2007), that, if well-pleaded, avoids dismissal on a
Rule 12(b)(6) motion. See McMillan v. Collection Profession-
als, Inc., 455 F.3d 754, 759 (7th Cir. 2006) (“We have cau-
tioned that a district court must tread carefully
before holding that a letter is not confusing as a matter
of law when ruling on a Rule 12(b)(6) motion because
district judges are not good proxies for the unsophisti-
cated consumer whose interest the statute protects.”
(internal quotation marks omitted)). Nevertheless, a
plaintiff fails to state a claim and dismissal is appro-
priate as a matter of law when it is “apparent from a
reading of the letter that not even a significant fraction
of the population would be misled by it.” Taylor, 365
F.3d at 574 (internal quotation marks omitted).
In analyzing whether a letter, on its face, contravenes
Section 1692g(b), this Court has distinguished between
language rushing the debtor to take action—to “act
now”—and provisions that set deadlines contrary or
contradictory to the thirty-day validation period. Compare
Taylor, 365 F.3d at 575 (upholding as not confusing a
dunning letter instructing the recipient to “[a]ct now to
No. 11-2334 7
satisfy this debt”), with Bartlett v. Heibl, 128 F.3d 497, 499,
502 (7th Cir. 1997) (rejecting as confusing a letter
that contained notice of the thirty-day validation period,
but also demanded that the debtor pay $316 toward
his debt or call the creditor within a week to avoid
legal action), Chauncey v. JDR Recovery Corp., 118 F.3d
516, 518, 519 (7th Cir. 1997) (rejecting as contradictory
a letter that required receipt of payment within thirty
days, thereby truncating a debtor’s validation period),
and Avila, 84 F.3d at 226 (rejecting as confusing a letter
that followed its validation notice with a sentence
stating, “[i]f the above does not apply to you, we shall
expect payment . . . to be made within ten (10) days
from the date of this letter”). We identify the former
language as puffery, as “rhetoric designed to create a
mood rather than to convey concrete information or
misinformation.” Taylor, 365 F.3d at 575. Puffery, without
more, does not violate Section 1692g(b). Even the most
unsophisticated debtor would realize that debt col-
lectors wish to expedite payment, and urging him to
hurry does not confuse or undermine his right to his
validation period. See id. at 575-76.
The dunning letter that Global Credit sent to
Zemeckis, at worst, contains puffery. Its suggestions
to “take action now” and call “today” did not impose
a deadline that contradicted her right to a thirty-day
validation period. The requests that she call “now” or
“today” were not tantamount to a request for payment,
nor would an unsophisticated consumer understand
them as such. Accord Terran v. Kaplan, 109 F.3d 1428,
1434 (9th Cir. 1997) (holding that a request for immediate
8 No. 11-2334
telephone contact does not overshadow the mandated
validation notice, especially since “the challenged
language . . . [did] not require payment immedi-
ately” (emphasis in original) (internal quotation marks
omitted)).
Global Credit’s repeated threat of legal action
similarly fails to convert the letter’s puffery into a contra-
dictory payment deadline. The letter warns only that
Capital One Bank had the right to pursue legal action.
It did not go so far as to mention that it had the right, as
do all creditors, to initiate suit during the validation
period, see Bartlett, 128 F.3d at 501. That information,
if included, would have rendered the letter even
more threatening and still would not have risen to a
violation of Section 1692g(b). As written, the letter
alerted Zemeckis only to the possible repercussions
she faced for failing to pay.
Finally, locating the validation notice on the back
of the letter, while undesirable, does not engender con-
fusion sufficient to state a claim under the FDCPA.
We rejected an identical argument in Sims v. GC Services
L.P., 445 F.3d 959, 963 (7th Cir. 2006), in which a debt
collector placed the validation notice on the back of a
collection letter. In Sims, the letter’s front instructed
the debtor, in bold, red, capitalized letters to “see
reverse side for important consumer information.” Id.
at 964. We concluded that this warning adequately
advised the uninformed consumer where to locate
the relevant information about his rights and mitigated
his risk of confusion. Id. at 964. The letter in this case
No. 11-2334 9
proves virtually indistinguishable from that in Sims,
warning, on the front of the letter and in all capital
letters, that Zemeckis should “see [the] reverse side for
important information.” Global Credit also wrote the
validation notice in bold typeface, making it easier to
read than the notice we upheld in Sims, which was
penned in gray ink. See id. at 961. While we in no way
laud Global Credit’s dunning letter as ideal or as an
example of debt collection at its finest, cf. Bartlett, 128
F.3d at 501-02 (offering a model letter as guidance for
complying with Section 1692g), neither its structure
nor its diction cloud its meaning such that an unsophisti-
cated consumer could not understand it or his rights.
As a matter of law, Zemeckis fails to state a claim
under Section 1692g(b), and the district court properly
granted Global Credit’s motion to dismiss.
B. Denial of Opportunity to Submit Extrinsic Evidence
Because we find the dunning letter clear on its face,
we similarly affirm the district court’s decision to
dismiss Zemeckis’ claim before she had the opportunity
to conduct a consumer survey. We support consumer
surveys as one means by which to illustrate the
confusing nature of a dunning letter, see McMillan, 455
F.3d at 758 (quoting Walker v. Nat’l Recovery, Inc., 200
F.3d 500, 501 (7th Cir. 1999)), but we decline to
consider surveys when “no reasonable person, however
unsophisticated, could construe the wording of the com-
munication in a manner that . . . violate[s] [Section
1692g(b)].” Id. at 760. As Global Credit’s dunning letter
10 No. 11-2334
was clear as a matter of law, see supra Part II.A, we
reject the need for a clarifying consumer survey in
this case.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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