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Spanish-Only Letter May Violate FDCPA

A debtor who could not read Spanish may sue defendant debt collection agency for violations of the Fair Debt Collection Practices Act for sending her dunning letters in Spanish, says an Alexandria U.S. District Court.

Plaintiff claims that by sending the first collection letter, defendant violated numerous provisions of the FDCPA, including 15 U.S.C. § 1692e. Plaintiff contends the failure to provide disclosure in English constitutes false and misleading representations. There is no allegation, however, that the substance of the Spanish collection letter contained false statements or information; quite simply, they were just written in Spanish, a language she could not read. Section 1692e of the FDCPA generally prohibits debt collectors from using any false, deceptive or misleading representation or means in connection with the collection of any debt. To rise to the level of a statutory violation, the representation must be material, by an objective standard.

Here, even though there is nothing substantively false about the representations made by defendant in the Spanish collection letters, the court finds that they could objectively affect the least sophisticated consumer’s decision making. Even though there is no official language requirement under the FDCPA, courts have been suspicious when debt collectors use both English and Spanish in collection letters. Here, the collection letters were written almost entirely in Spanish, but also contained portions in English, including debtor’s own logo: “Portfolio Recovery Associates LLC: We’re giving debt collection a good name.” The inclusion of the English portions indicates defendant’s awareness that the recipient of the debt collection letters include English-speaking consumers who did not speak Spanish. And perhaps defendant was targeting English-speaking debtors with Spanish-only letters in an attempt to deceive or mislead, as plaintiff alleges. At this stage, the court must accept this allegation as true – the least sophisticated consumer would find the collection letters deceptive or misleading.

Plaintiff also claims the collection letters violate 15 U.S.C. § 1692e(11) by failing to disclose in the English language that a defendant is a debt collector who was attempting to collect a debt and that information obtained would be used for that purpose. This claim also must survive. Plaintiff alleges she did not actually receive the required statutory disclosure, because she does not read Spanish.

Ultimately, the court could not find any authority that requires debt collectors to predict the consumer’s native language when sending out collection letters. This is because such authority would undoubtedly cause a slippery slope. The court must assess the reasonableness of the debt collector’s communication and determine whether the form and substance could objectively affect the least sophisticated consumer’s decision making.

Motion to dismiss denied.

Dykes v. Portfolio Recovery Associates LLC (Cacheris) No. 1:15cv110, June 30, 2015; USDC at Alexandria, Va. VLW 015-3-328, 10 pp.

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