DEVELOPING A COMPLIANT LETTER THAT SATISFIES YOUR REQUIREMENTS
IS A MULTI-STEP PROCESS
1. Review letters from various sources to see how others prepare their letters. A color printer or viewing on your computer screen is required to see colors which identify changes and to attract your attention.
2. Select a sample to customize for your practice. CCEF maintains and updates different samples which are available for its members.
3. Customize the letter for your purposes. Be careful not to change any material portions of the letter without consulting with an attorney to evaluate the effect of the changes.
4. Evaluate whether the statements in the letters are objectively
true and accurate.
5. Evaluate whether the letters possess any material omissions or material exaggerations.
a. ex1: Statute of Limitations expired on the debt but the letter threatens a lawsuit will be filed.
b. ex2: In practice you do not follow a procedure as quickly as you represent in the letter.
6. Have someone not in the industry review the letter for its “feel”. If they find it confusing, others may as well.
7. Identify the states to which the letters will be mailed. Identify any special counties, municipalities, or cities that have special rules (ex: NYC & Buffalo).
8. Consult with an attorney to:
a. determine what state laws or city ordinances require additional disclosures or the disclosure of any of your licenses;
b. determine whether certain language should be avoided in certain states, circuits, counties, municipalities, or cities;
c. Review the applicable statutes and case law.
9. Make up templates to address each specific situation.
10. Document the procedure as to how the form letter should be utilized by the staff and store the form. Keep a copy of the procedure. Store backups of all forms in a different location in case the main form is corrupted.
11. Minor changes to the letter could expose your firm and you to liability. Always have an attorney review the final version.
a. Example: Balance/Amount is not the same as “Total Balance.”
b. If you don’t include documentation, any reference to the documentation must be reviewed. It is strongly recommended that documents supporting the debt accompany the letter.
c. Look at the different forms as opposed to changing a form. Be aware of unintended consequences, because you may not have considered an issue.
d. When in doubt, ask an attorney why the language was used/not used!
12. Review case law on a regular basis as this area of law is heavily litigated and new theories emerge on a regular basis.
What's New in the User Guide – AUGUST 2014
1. Time-Barred debt
a. Credit reporting of time-barred debts
b. NEW FORM LETTER FOR TIME BARRED DEBT
2. “Attorney Meaningful Involvement” cases
3. Ineffective “Greco Disclaimer”
4. “Judgment” - If application in 1692g Notice
5. Cases on “creditor” name
6. Requests for Attorney’s Fees
7. Letterhead issues
8. Filing lawsuits within the 30 day validation period
9. All templates have minor or major revisions and edits based on recent case law
USER’S GUIDE TO SAMPLE LETTERS
1. Avoid the use of the term “you” to avoid wrong party situations
The use of the word of “you” exposes your company to lawsuit if you contact the wrong party. The use of the terms “you” implies the party to whom the letter is addressed owes the debt, whether or not they owe the money or are the correct party. Possible scenarios include:
• Another party has the exact same name.
• Neither father nor son uses Jr./Sr. and you contact the wrong party.
• “George Foreman scenario,” where George named his sons after himself.
• If you avoid the use of “you”, you may be successful on a 12(c) motion.
• Identity theft situations.
• Potential arguments to avoid a violation for ID Theft:
o There is no way a collector or anyone except the victim of identity theft can know about the identity theft. A victim of true identity theft will likely not know until he or she is the subject of collection. In the situation in which the debtor is alerted to the ID theft by the collector’s initial communication and reacts, it would be unjust for a court to expect the debt collector to know about the ID theft when the debt collector has no reason or ability to know.
o Include documents that identify the party liable for the debt and speak for themselves to prevent confusion:
“Here, defendant’s August letter correctly identified the current creditor and account number and, most importantly, attached the relevant account statements for plaintiff to satisfy herself as to the name of the original creditor. The fact that the account number on the cover letter matched the account number contained in the statements would assure even the least sophisticated creditor that any payments would satisfy the debt as to that account number. The statements would also confirm for such a debtor the defendant’s authority to collect this debt. This argument was used in a related argument over another typo with respect to the name of the original creditor.” See Jeffrey v Gordon, 2011 WL 2134050 (D.Or. 5/25/11).
Two Favorable Cases for Debt Collectors
1. Kaniewski v. Nat’l Action Fin. Servs., 678 F. Supp. 2d 541 (E.D. Mich. 2009) which stated, “[a]pplying this standard, one judge in this district has held that a plaintiff who knew that the defendants were not attempting to collect on a debt owed by him could not sustain an FDCPA claim under § 1692e as a matter of law. Kujawa v. Palisades Collection, LLP, 614 F. Supp. 2d 788 (E.D. Mich. 2008) (Cohn, J.). Defendant cites Kujawa for the proposition that “because Plaintiff knew that [Defendant’s] communications were not directed at him, but rather at another individual, Plaintiff cannot succeed on his §§ 1692e and 1692f claims.” (Def.’s Mot. Br. at 6.) As further support, Defendant also cites to Hill v. Javitch, Block & Rathbone, LLP, 574 F. Supp. 2d 819 (S.D. Ohio 2008) (Beckwith, C.J.). In Hill, the court held that held that the plaintiff failed to state a claim under § 1692f of the FDCPA where he “clearly understood” that the communications were not directed at him and “[e]ven the least sophisticated consumer would have understood” that the defendant “was not attempting to collect a debt from [the plaintiff].” Id. at 826. The court agrees with the reasoning of Hill and Kujawa. There is no dispute that Plaintiff knew that Defendant was not attempting to collect a debt from him. Accordingly, Plaintiff cannot meet the “least sophisticated consumer” test as a matter of law. As Judge Cohn stated, the court “is mindful of [P]laintiff’s situation. . . . However, the aggravation [P]laintiff likely suffered . . . simply does not make out a violation of the FDCPA.” Kujawa, 614 F. Supp. 2d at 792. The court will therefore grant Defendant’s motion with respect to Plaintiff’s claims under § 1692e and § 1692f. See also Covell v. Chiari&Ilecki, LLP, 2012 U.S. Dist. LEXIS 186330 (W.D.N.Y. Oct. 16, 2012).”
2. Harrer v. RJM Acquisitions LLC, 2012 U.S. Dist. LEXIS 5912 (N.D. Ill. Jan. 19, 2012): “More specifically, the Court must determine whether an unsophisticated consumer like Plaintiff, whose name was “Werner Harrer,” not “WenerHarrer,” who has never had a Doubleday Book Club account, and who has never lived at the address identified as the debtor’s address in the collection letter, would believe that he owed the $91.09 debt to Doubleday.
Although the question is a close one, the Court concludes that “the reasonable consumer, unsophisticated though [he] may be,” would not be confused by the technically false information in the collection letter that Plaintiff received. The unsophisticated consumer knows his account history, see Wahl, 556 F.3d at 646, and knows the addresses at which he has lived in the past. This case is different from one in which a plaintiff receives a single collection letter stating that the plaintiff himself owes a debt that has been discharged in bankruptcy. See, e.g., Turner, 330 F.3d at 995 (holding that the reasonable unsophisticated consumer could be misled by the receipt of one collection letter that stated that the consumer himself owed a debt that had been discharged in bankruptcy). Plaintiff never owed the Doubleday debt in the past, nor has he ever had a Doubleday Book Club account. Plaintiff himself has not alleged that he was confused or misled when he received the collection letter and the Court concludes that the reasonable unsophisticated consumer would not be confused either. See Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 774 (7th Cir. 2007) (stating that a plaintiff cannot prevail on a claim under the FDCPA just by contending that he was confused; rather “[h]e must show that he is representative of the protected group”).
This is particularly true because the letter that Plaintiff received fully complied with the terms of § 1692g(a) by, among other things, providing a statement that: (1) Plaintiff could, within thirty days after receipt of the letter, dispute the validity of the debt; and (2) if Plaintiff disputed the debt in writing within that time period, the debt collector would obtain verification of the debt and mail it to the consumer. While that fact is not dispositive on a claim under § 1692e, it is relevant here. Based on the statements in the collection letter, even if Plaintiff initially was confused by the request for money addressed to someone with a very similar name, the unsophisticated consumer would be reassured that the letter may have been sent to him in error and would know to contact the debt collector to request verification of the debt.
...
Regardless of whether a collection letter falsely implies that a consumer owes a debt that he does not actually owe, if the letter simply provides to the consumer the information required under § 1692g(a) -- the amount of the debt, the name of the creditor, and the required statements regarding a verification request -- it is not “unfair” for purposes of § 1692f. Turner, 330 F.3d at 998 (holding that “a letter simply providing the information required by § 1692g(a) is not an unfair or unconscionable means of debt collection under § 1692f, even when the debt collector may have violated some other provision of the FDCPA”). No reasonable unsophisticated consumer who received a letter like the letter Plaintiff received would conclude that the letter is an “unfair or unconscionable” means of debt collection…. While Defendant’s behavior -- mailing one collection letter to the incorrect debtor -- was in connection with the collection of a debt, the facts alleged here do not plausibly suggest that the natural consequence of Defendant’s conduct was to abuse, harass, or oppres".
2. One suggested modification to 1692 g notice: Avoid suggestion judgment exists
It is suggested to clarify whether a judgment exists or not
o (if a judgment exists)
o (if the debt is found upon a judgment)
o (if applicable)
See Keasey v. Judgment Enforcement Law Firm, PLLC, 2014 U.S. Dist. LEXIS 59805 (W.D. Mich. Apr. 30, 2014) Law firm omitted language regarding Judgment, was sued, but NO Violation: Court stated Plaintiff’s argument defies reason. Defendants were not obligated to notify Plaintiff of her right to obtain a copy of a non-existent judgment. See Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 507 (6th Cir. 2007 (finding that language notifying the plaintiff of her right to obtain verification of the debt complied with the technical requirements of the FDCPA). In fact, including reference to a non-existent judgment could easily confuse a debtor by causing her to believe there was a judgment against her. See Stojanovski v. Strobl & Manoogian, P.C., 783 F. Supp. 319, 324 (E.D. Mich. 1992) (“If the defendant did falsify and state that it would provide a non-existent judgment against plaintiffs, that would . . . very likely mislead[] unsophisticated plaintiffs into a belief that there had already been a judgment rendered against them.”). Accordingly, the Court will grant summary judgment on this claim.
COURT FOUND THAT OTHER VIOLATIONS EXISTED.