A district court in Virginia recently served the reminder that letter language does not automatically lead to class certification. Davis v. Segan, Mason & Mason, C.A. No. 1:15-cv-1091-GBL-IDD, 2016 U.S. Dist. LEXIS 7016 (E.D. Va. Jan. 19, 2016). In Davis, the consumer took issue with the law firm’s collection letter which sought to collect homeowner association assessment and provided:
Your account has been referred to our office for collection. The enclosed statement of account represents the amount owed for the referenced period only.
Please note that unless the amounts detailed on the enclosed statement of account are paid on or before May 26, 2015, the following action will result… [a] lawsuit will be filed against you in General District Court seeking a personal judgment.
Davis at * 4. The letter include an attached “Schedule of Account” which showed the dates of assessments and late fees, the date plaintiff made payment and the total amount owed. Davis at *5.
The consumer filed suit asserting that the letter violation 15 U.S.C. §1692g because it failed to disclose the amount of the debt and included the “for the referenced period only” language which the consumer contended was confusing. The consumer also sought to certify a class alleging that the language indicating defendant intended to file suit violated 15 U.S.C. §1692e when defendant did not actually intend to file suit. The Defendant moved to dismiss the complaint.
As to the first issue, the court held that the language of the letter was not confusing to the least sophisticated consumer because it clearly referenced in the attached statement of account. Reading Defendant’s collection letter and the attached “Schedule of Account” together as a whole, the court found that the letter adequately communicated the debt owed even to the least sophisticated consumer. The court noted that a collection letter which either states the amount due as of the date of the letter or as of a specific date is in compliance with Section 1692g. Moreover, the “for the referenced period only” language clearly referenced the Schedule of Account attachment and was not, as a matter of law, confusing.
Moving to the class allegations, the court also granted the defendant’s motion to dismiss holding that “plaintiffs fail to set forth a recognizable basis for class certification where an individualized inquiry into the intent of Defendant to initiate a lawsuit should be necessary in each case in which Defendant sent a collection letter.” Davis at *10. The court noted that while section 1692e prohibits debt collectors from creating a false sense of urgency, threatening a lawsuit if a debt is not paid by a certain date is not a violation of the statute if the debt collector intends to file the suit. In this case, the court held that the claim would necessarily require a determination of whether Defendant intended to file a lawsuit in each instance that it sent a collection letter to a potential member of the class. “Accordingly, Defendant’s liability to the members of the class cannot be proved unless each individual class member independently can prove that Defendant mailed a letter threating to sue without having the intention to sue in each case.” Davis at *11. The plaintiff therefore could not satisfy the commonality requirement under Rule 23(a).