McKinney v. Cadleway Properties, Inc.

ROVNER, Circuit Judge,

concurring in part and dissenting in part.

Although I agree with the majority opinion that Cadleway was a debt collector as defined in the Fair Debt Collection Practices Act, I disagree with its conclusion that the debt collection letter was not confusing. Judge Guzmán below determined that any reasonable jury would conclude that the unsophisticated consumer would be confused by the form. My colleague is worlds apart, finding that there is nothing confusing on the face of the letter at all. I find the latter position untenable.

The majority, the court below, and I all agree that the standard validation notice set forth in the first five paragraphs of the letter sent to Versia McKinney correctly informed the debtor that she had thirty days to dispute the validity of the date. To so dispute a debt, one only need write a letter to Cadleway at the indicated address and state simply, “I dispute the debt.” These four words alone activate all of Ca-dleway’s obligations under the FDCPA. The last paragraph, however, asks debtors to do more. It asks the debtor to confirm the amount of the debt, that is, to list a specific amount that the debtor agrees is owed, and the implied consequence for failing to do so is a damaged credit rating. Perhaps a savvy debtor might understand that the confirmation portion of the requirement is optional. I surely would not have and for the reasons I describe below, I do not think an unsophisticated consumer would either.

Imagine a not uncommon debtor who has dribbled out payments in cash and money orders as she is able — ten dollars stuffed into an envelope here, fifteen there — and who may have been less than precise in her record keeping. She knows that she owes something, and she knows that it is less than the amount stated by the creditor, but she does not know precisely how much less.1 She cannot state *508that the amount she owes is “zero,” as she knows this is not true. If she were to guess an amount, she would be making an admission (and probably an incorrect one) as to her amount of debt. What is she to do? The FDCPA relieves her of this burden by requiring only that she state “I dispute the debt.” Cadleway’s letter puts an additional burden on her and implies that her failure to comply will result in damage to her credit rating.

The majority opinion concludes that the form does nothing to imply that confirmation is obligatory. To the contrary, everything about the letter indicates otherwise. The clear direction in the last paragraph of the letter is to “confirm the balance or state the amount you believe is correct.” It is then followed by a form that contemplates exactly such a confirmation. It states:

The total amount owed as of September 24, 2004 of $_is confirmed.
The amount owed is incorrect. The total amount owed should be $_

If Cadleway merely had wanted to help creditors by providing a form to dispute the debt it would have provided a check-box option that stated, “□ I dispute this debt.” This letter is relying on a consumer’s natural inclination to fill out a form provided in a letter rather than dissect the dense text of the correspondence to determine first, that confirming is different than disputing the debt, and second, that she cannot use the form, but must create her own letter from whole cloth in order to dispute the debt. That form, moreover, contradicts the requirements of the FDCPA and puts the burden on the consumer rather than the debt collector to determine the correct amount of debt owed. The confusion is compounded by the implication that failure to confirm the amount of the debt will result in a damaged credit rating. Ignoring the form thus appears to lead to detrimental consequences. The direction, the nature of the form, and the implied threat together indicate that such a confirmation is indeed required. And that requirement is different from, and in some cases directly contrary to, the requirements of the FDCPA. A debt collector may not overshadow or contradict correct FDCPA information with other messages sent with the validation notice. Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518 (7th Cir.1997). The option to write “0” next to “total amount owed” — an option to which the majority points — does nothing to alleviate the problem. In particular, for the debtor who thinks she owes some amount of debt, disputes the amount asserted by the collector, but has no basis to determine an exact correct amount, the form is nothing but confounding.

Judge Guzmán described the confusion in slightly different, although no less compelling terms. The validation notice portion of the letter (the first five paragraphs) informs the plaintiff how to dispute the debt and that it must be done within thirty days. The consequence of failing to dispute the debt is that Cadleway may assume that the entire debt is valid. The *509confirmation portion (the last paragraph) instructs debtors that they must confirm (rather than dispute) the debt but provides no time line for doing so. (R. at 47, p. 6) The implied consequence for failing to confirm the debt is a damaged credit rating. Id. In sum, the two portions therefore differ in (1) the action required (dispute vs. confirm), (2) the time frame for action (thirty days vs. no stated time limit), and (3) the consequence for failing to act (the debtor will assume the validity of the debt vs. an implication that the creditor’s credit rating will suffer).

Judge Guzmán concludes that the two provisions taken together could be interpreted to mean (1) that the debtor has thirty days to dispute or confirm the debt and failure to do so within that time frame will lead Cadleway to assume the entire debt is valid and to report the entire debt as unpaid to the credit bureau; or (2) that the debtor has both the option to dispute the debt within thirty days and the obligation to confirm the debt within an unspecified amount of time and that failure to do the former will lead the defendants to assume that the debt is valid and failure to do the latter will cause them to report the entire debt as unpaid to the credit bureau. Id.

As the district court points out, the first interpretation requires the reader to conclude that the words dispute and confirm are synonymous and that the confirmation provision is just an elaboration of the validation notice. Id. The district court concluded that only “a savvy consumer would draw those conclusions from this letter. But an unsophisticated consumer, faced with a letter that separately discusses the debtor’s option to dispute and apparent obligation to confirm and sets forth different consequences for the failure to do each, would not.” Id. Judge Guzmán concluded that an unsophisticated consumer would reasonably conclude that disputing and confirming are separate acts and that failure to do the latter would damage her credit rating. Id.

The majority agrees with Judge Guzmán that disputing and confirming are indeed separate acts (“the form permits the consumer to either confirm the debt or to dispute it,” ante at 504 (emphasis in original)), but concludes that the form does nothing to imply that confirmation is obligatory. As I concluded above, however, the letter says nothing about an option to confirm, and even a more sophisticated consumer would view the tone and form of the letter as a whole as requiring confirmation. Furthermore, even a letter that explicitly stated “you also have the option, but are not required to confirm the amount of debt so that we can report it to the credit bureau in accordance with 15 U.S.C. § 1681,” would not relieve the confusion. “A letter can be confusing even to a sophisticated reader though it does not contain an outright contradiction.” Chuway v. Nat’l Action Fin. Servs. Inc., 362 F.3d 944, 949 (7th Cir.2004); see also Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060 (7th Cir.1999) (the failure to explain an apparent though not actual contradiction can induce confusion). Even the statement that confirmation is optional would leave the consumer scratching her head wondering: Is this option different from the option to dispute the debt? Must I dispute the debt with a specific numeric figure? Will I be reported to the credit bureau if I dispute but do not confirm the debt? If I confirm the debt with an amount lower than the amount stated, is the debt collector still obliged to cease collection of the debt until a verification of the debt is mailed to me? The confirmation portion of the letter raises all of these questions but leaves them unanswered. Not even I know the answer without resorting to legal research. This surely can*510not be the standard we require of the unsophisticated consumer. The confirmation portion of the letter is clearly confusing on its face. I therefore respectfully dissent.

. In fact, such is the case with McKinney herself. She explained that she did not understand how she could calculate the correct amount because she did not have the records. I include this example in a footnote, because I wish to de-emphasize McKinney's actual experience for the following reasons: There are two ways of demonstrating that a debt collection letter is confusing. One is to demonstrate that it is confusing on its face. The second is to demonstrate that it would be confusing to the average unsophisticated consumer. Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 414-15 (7th Cir.2005) ("In some situations, when an FDCPA violation is so ‘clearly’ evident on the face of a collection letter, a court may award summary judgment to the FDCPA plaintiff.”). In either case, the actual confusion of the plaintiff, therefore, is irrelevant unless there is also some evidence presented that the plaintiff is representative of the group of unsophisticated consumers. Avila v. Rubin, 84 F.3d 222, 227 (7th Cir.1996) ("because [the statements in the collection letter] are inconsistent and contradictory ... our finding that the defendants violated § 1692g, without reference to actual consumer confusion, is appropriate.”); Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir.1997) ("the question whether a dunning letter violates the Fair Debt Collection Practices Act does not require evidence that the recipient was confused — or even, ’as we noted earlier, whether he read the letter”). In Chuway v. Nat'l Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th *508Cir.2004), Judge Posner states that no further evidence of confusion is necessary if the letter is confusing on its face, and the plaintiff testifies credibly that she was indeed confused. Id. (emphasis added). Although he cites several cases for the former proposition, he cites none for the latter. And indeed in his earlier opinion in Bartlett, he notes that the FDCPA does not require evidence that the recipient was confused or even that the recipient read the dunning letter. This is, of course, true because the test for confusion is an objective one. The majority opines at length about the evidence that the collection letter was not confusing to McKinney. This is a red herring. We have no evidence that McKinney was or was not representative of the unsophisticated consumer.