The Court of Appeals for the Seventh Circuit recently upheld the dismissal of a lawsuit against a debt collector for allegedly violating the Fair Debt Collection Practices Act by sending a collection letter containing an incorrect reference to the location of the debt validation disclosures required by the FDCPA. The case is O’Boyle v. Real Time Resolutions, Inc., and the decision can be accessed here.
Real Time Resolutions sent Anne O’Boyle, a Wisconsin resident, a two-page collection letter concerning an unpaid credit card debt. In addition to other information, the first page of the letter contained the following statement: “Please see the back of this page for additional important information regarding this account.”
The back of the first page contained various state-specific disclosures. The notice for Wisconsin was a “banal notice” about Real Time’s licensing. The same page also stated: “THIS LIST IS NOT A COMPLETE LIST OF RIGHTS CONSUMERS MAY HAVE UNDER STATE AND FEDERAL LAW.” The front of the second page contained the debt validation disclosures required by Section 1692g of the FDCPA.
O’Boyle filed a class action suit against Real Time, alleging that the notice on the first page misdirected recipients to the location of the validation notice, which was actually on the second page, thus “falsely represent[ing] that this notice is unimportant, and overshadow[ing] the disclosure of dispute rights.” Real Time moved to dismiss for failure to state a claim, which the lower court granted, and the class was never certified.
In affirming the dismissal, the Seventh Circuit expressly rejected O’Boyle’s attempts to read into the FDCPA disclosure requirements that are in fact not a part of the statute. Specifically, the court noted: “Here is what the FDCPA does not say. The FDCPA does not say a debt collector must put the validation notice on the ﬁrst page of a letter. Nor does the FDCPA say the ﬁrst page of a debt-collection letter must point to the validation notice if it is not on the ﬁrst page. Nor does the FDCPA say a debt collector must tell a consumer the validation notice is important. Nor does the FDCPA say a debt collector may not tell a consumer that other information is important.”
Rather, the court noted, the statute merely “requires a debt collector to give the consumer the required validation notice” and “forbids a debt collector from overshadowing the disclosure and from engaging in communication inconsistent with the disclosure.”
Here, the validation notice appeared in clear, legible typeface near the top of the front of the second page. The Court thus rejected O’Boyle’s argument that the letter failed to meet the “unsophisticated consumer” standard by “burying” the validation notice, colorfully noting that “[i]f so, the notice is an incorrupt corpse in an above-ground glass casket.” The Court also held that the district court properly denied O’Boyle’s leave to amend to add additional legal theories based on the same factual allegations concerning the notice.