Monday, October 09, 2006

debt collection - false/misleading threats to take action

Brown, et al. v. Card Service Center - 3d Circuit - September 29, 2006

http://www.ca3.uscourts.gov/opinarch/054160p.pdf

Plaintiff stated a claim for relief when she alleged that the Defendant collection agency violated the Fair Debt Collection Practices Act, 15 USC 1692 et seq., by sending her a letter stating that her failure to make payments arrangements within 5 days "could result in our forwarding this account to our attorney with directions to continue collection efforts," where Plaintiff alleged that such attorney referrals were rarely if ever made.

The court applied the "least sophisticated debtor" (LSD) standard in determining whether the debt collector's statement was a "threat to take any action that...is not intended to be taken" under 15 USC 1692e(5) (false or misleading representations). The LSD standard protects "all consumers, the gullible as well as the shrewd, the trusting as well as the suspicious," and "prevents liability for bizarre or idiosyncratic interpretations of collections notices by preserving a quotient of reasonableness and presuming a basis level of understanding and willingness to read with care.""

The 3d Circuit reversed the district court, which had held that a debtor should have understood the conditional word "could" as simply advising the debtor of options available to the debt collector. The appellate court disagreed, stating that it was deceptive for the collector to "assert that it could take an action that it had no intention of taking and has never or very rarely taken before." (emphasis in original) The "least sophisticated debtor might get the impression that litigation or referral to a...lawyer would be imminent if he or she did not respond within five days. We do not believe that such a reading would be 'bizarre or idiosyncratic'....."

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