Spanish dunning letter supports Fair Debt suit

An English-speaking woman who received a collection letter written almost entirely in Spanish can bring a claim against the collection agency under the Fair Debt Collections Practices Act, a federal judge in Alexandria has ruled.

The plaintiff, Caroline Dykes, does not speak any Spanish. The effort to collect a credit-card debt was “false, deceptive and misleading,” she claimed.

U.S. District Judge James C. Cacheris let the claim against a large collection agency, Portfolio Recovery Associates, go forward, noting that at this stage of the proceeding, a “least sophisticated consumer” might be deceived or misled.

The case is Dykes v. Portfolio Recovery Associates (VLW 015-3-328).

Slogan in English

Dykes did not dispute that she owed the $3,886 debt that she put on her Capital One credit card; PRA allegedly bought the debt from the bank, then pursued collection efforts.

But three letters sent to Dykes in 2014 were written in Spanish, with the exception of PRA’s slogan, “We’re giving debt collection a good name.”

At the bottom of the first letter was this language, in Spanish: “This letter comes from a collection agency and its intention is to collect a debt. Any information that is obtained will be used for that purpose.”

There was no translation to English included. The second and third letters contained slightly different language with the same message, Cacheris noted.

Dykes filed a putative class action against PRA under the FDCPA, alleging the Spanish collection letters were false, deceptive or misleading and violated the Act. PRA filed a Rule 12 (b)(6) motion for dismissal for failure to state a claim.

Cacheris observed that Dykes didn’t allege that the letters contained false statements, instead, “they were just written in Spanish, a language she could not read.”

The judge noted that the 4th U.S. Circuit Court of Appeals never has directly addressed whether “application of the objective least-sophisticated-consumer test to the language of a dunning letter is a question of law,” but the court has “assumed that to be the case.”

In this case, Cacheris said that even though there is nothing substantively false in the letters, he found they could “objectively affect the least sophisticated consumer’s decisionmaking.”

He added that he made this finding mindful that dismissal at the Rule 12(b)(6) stage is “disfavored.”

The judge wrote that courts have been suspicious when debt collectors use both English and Spanish in collection letters.

In Ehrich v. I.C. Sys. Inc., a 2010 case from the Eastern District of New York, the court said the inclusion of a Spanish sentence in a letter indicated the collector knew that it might go to a Spanish speaker who didn’t know English. By including Spanish sentences, it might deceive or mislead the least sophisticated Spanish-speaking consumers into calling a phone number and potentially waiving rights.

The Fair Debt Act does not contain any explicit language requirements, the judge wrote.

Instead, the court must assess the reasonableness of the debt collector’s communication.

While “an all-Spanish collection letter certainly does not entitle PRA to any best-practice awards, at this stage of the proceeding,” Dykes has alleged that PRA’s letters were objectively unreasonable and deceptive from the viewpoint of the least sophisticated consumer.

Cacheris denied the motion to dismiss.