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Debt collection letter not false, misleading or ‘overshadowing’

Where language in a debt collection letter sent by a law firm was not false or misleading and did not “overshadow” the required validation notice from the debt collector, a woman’s suit alleging violations of the Fair Debt Collection Act was dismissed.

Background

In this purported class action, Tedra Hanks claims the language in a collection letter sent by the Shafer Law Firm violates the FDCA.

Though styled in three counts, all of the plaintiff’s claims relate to the allegedly misleading statement that the Bon Secours’ debt was “scheduled to be reported to the credit bureau within 30 days.” Hanks claims this language is misleading because it implies that she would not have the right to dispute the debt guaranteed by statute. She also claims the language “overshadows” the notice by “threatening to report the debt” to credit bureaus before the 30-day validation and dispute period expired.

The Shafer Law Firm has moved to dismiss, arguing the complaint fails to plausibly allege a false and misleading statement in the letter and that the allegedly misleading statement Hanks identified does not “overshadow” the statutorily required notice of her ability to dispute the debt.

Report and recommendation

First, the letter’s statement that the creditor’s records reflect “scheduled” credit report is not plausibly alleged to be false or misleading. The “misleading” interpretation Hanks urges is not based on the language of the letter, but on a misreading of the text and on an unsupported supposition that Hanks’ rights under the validation notice would be violated.

Reading the letter in its entirety, it invites an exchange with the debtor for purpose of resolving the debt. It neither demands payment nor threatens legal action. There is nothing false or misleading about the clause Hanks relies on, and the allegations she does make would not be material in any event given the clarity of the correspondence as a whole.

For the same reasons, the letter’s mention of the creditor’s “scheduled” credit report does not overshadow the required validation notice from the debt collector. Simple offers of settlement, even those with effective dates within the 30-day validation window, do not generally overshadow an otherwise proper notice. And in this case, the mere passive-voice mention describing the creditor’s “scheduled” credit reporting does not overshadow the clearly written (and otherwise unchallenged) validation notice.

Finally, because Hanks’ allegations of “unfair or unconscionable means to collect” the debt under 15 U.S.C. § 1692f are based on the same alleged defects, this count also fails to state a claim for relief.

For the foregoing reasons, the undersigned recommends that the court grant defendant’s motion to dismiss and dismiss the complaint with prejudice.

District court opinion

Having reviewed the record and the objection to the R&R filed by the plaintiff, and having made a de novo determination, the court hereby overrules plaintiff’s objection and adopts and approves in full the findings and recommendations set forth in the magistrate judge’s well-reasoned R&R. Accordingly the complaint is dismissed with prejudice.

Defendant’s motion to dismiss granted.

Hanks v. Shafer Law Firm PC, Case No. 19-cv-428, Dec. 13, 2019. EDVA at Norfolk (Smith). VLW 019-3-597. 17 pp.

VLW 019-3-597

Virginia Lawyers Weekly