In Caceres v. McCalla Raymer, LLC, 13-12450, (11th Cir. June 26, 2014), the Eleventh Circuit affirmed the dismissal of a putative class action brought under the FDCPA, 15 USC § 1692, against a law firm for sending a letter to a homeowner in default. Specifically, the letter did the following:
- stated that the law firm represented the interests of the lender, and that the homeowner could dispute the validity of the debt within 30 days of receipt of the letter;
- stated that failure to dispute within that period would result in the debt being assumed valid by the creditor (as opposed to the debt collector as required by the FDCPA);
- informed the homeowner that she was behind in her payments and provided her with a telephone number to call to inquire about the amount to be paid;
- listed the firm’s address for written inquiries;
- referenced the caption of the foreclosure case that had not yet been filed;
- stated, “[t]his communication is for the purpose of collecting a debt, and any information obtained from the debtor will be used for that purpose.”
The two questions at issue in the case were: 1) whether the letter constituted an “initial communication” triggering application of the FDCPA; and 2) whether the alleged errors in the letter were misleading so as to give rise to liability under the Act.
As to the first question, the Eleventh Circuit concluded that the letter qualified as an “initial communication” under the FDCPA, explaining that “the Act defines communication expansively,” and that courts look to “the language of the letter to determine that it was an attempt to collect a debt” for purpose of determining whether the FDCPA applies. In so holding, the court rejected the law firm’s argument that the letter qualified under the formal pleading exception, § 1692g(d), stating “[n]o reasonable person would consider this to be a pleading, let alone a formal one.”
As to the second question, however, the court did not find the technical violation in the letter – wherein the letter substituted “creditor” for “debt collector” when informing the homeowner of who would assume that the debt was valid if the debt was not contested within thirty days – was misleading. According to the court, because “the debt collector is obviously the agent of the creditor . . . the least sophisticated consumer would think that if the debt collector was entitled to assume that the debt is valid, the creditor would have the same right.” Accordingly, the Eleventh Circuit affirmed the lower court’s dismissal of the homeowner’s class action.