In Klein v. Forster & Garbus LLP, a New York district court granted the defendant debt collector’s motion for judgment on the pleadings and denied the plaintiff’s request to amend his complaint in a Fair Debt Collection Practices Act (FDCPA) case. In its holding, the court emphasized that, pursuant to the holding in Avila v. Riexinger & Association LLC, so long as a debt collector utilizes safe harbor language that “either accurately informs the consumer that the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date[,]” it will not be liable under 15 U.S.C. §1692e.
In this case, the defendant debt collector sent the plaintiff a collection letter regarding a debt the plaintiff owed to the creditor containing the outstanding balance and providing that “[i]f interest or other charges or fees accrue on this account, after the date of this letter, the amount due on the day you pay may be greater.” The plaintiff subsequently filed suit, alleging the above provision was misleading because it “merely allude[s] to the possibility of interest accruing[,]” when in fact, the “Defendant is well aware that interest is definitely accruing[.]” He further alleged the letter was confusing because “it is unclear as to whether or not the account was actually, currently accruing interest when it simply could have stated that interest was accruing.”
The court held that the plaintiff failed to adequately plead that the letter was misleading under 15 U.S.C. § 1692e for two reasons. First, it reasoned that the defendant used sufficient safe harbor language, which substantially complied with the provision set forth in the Second Circuit case Avila v. Riexinger & Association LLC. Specifically, it noted that Avila did not require a debt collector to use “any particular disclaimer,” so long as the debt collector “either accurately inform[ed] the consumer that the amount of the debt stated in the letter will increase over time, or clearly stat[ed] that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date[.]” Accordingly, it rejected plaintiff’s argument that the language utilized by the defendant was misleading.
Second, the court found the plaintiff’s argument unconvincing that the letter made “no explicit reference to an 800-number” that would, among other things, “encourage the least sophisticated consumer to call for clarification on the debt.” Indeed, it emphasized the necessity of reading debt collection letters “in their entirety.” In this case, a toll-free number was located at the top righthand corner of the letter along with the name of the representative assigned to the collection and the defendant’s operating hours. Furthermore, the second line of the letter stated: “In order to pay your indebtedness, and satisfy the judgment, contact our office to make arrangements to pay.”
Finally, the court denied the plaintiff’s request of leave to amend his complaint due to (1) procedural deficiencies (the plaintiff failed to make a proper motion to amend his complaint), (2) the fact that plaintiff failed to submit a proposed amended complaint, and (3) because it determined that amendment would be futile.
The court’s holding shows that Second Circuit courts do not require exact recitation of a particular disclaimer, such as the disclaimer set forth in Avila.