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Philip v. Sardo & Batista, P.C.

2011 WL 5513201 (U.S. Dist. Ct. D. N.J. 2011) (Unpublished)

FDCPA — Using “vs” in a caption or collection notice is not a violation of the Fair Debt Collection Practices Act if the notice, when read in its entirety, would not be understood by an unsophisticated consumer to mean that a law suit had been filed, especially when the body of the letter says that the debt were not paid, the creditor “will institute suit.”

A debtor received a letter from a collection agency seeking to collect a debt on behalf of their client. The debtor then sued, alleging that the collection notice had violated the Fair Debt Collection Practices Act (FDCPA) by: (1) placing “vs” between the parties’ names in the subject line of the letter when no lawsuit had been filed at the time the letter was sent; (2) identifying two different time periods in which the debtor had to exercise and preserve its rights under the FDCPA; and (3) failing to follow the proper notice requirements under the FDCPA. The collection agency moved to dismiss the complaint for failure to state a claim.

Here, the Court denied the collection agency’s motion to dismiss. A motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court could find the plaintiff’s claims to have facial plausibility. Under the FDCPA, a debt collector cannot use false, deceptive or misleading representations or means in connection with the collection of any debt. A communication would be considered deceptive if it can be read to have more than two different meanings. The Court found the use of “vs” did not violate the FDCPA because collection notices must be read in its entirety and even applying the unsophisticated consumer standard, “will institute suit” in the body of the letter negates any confusion arising from the subject line.

However, the Court believed the letter might have unlawfully created confusion as to what date would trigger the thirty day period due to the omission of the words “after receipt of the notice.” There were other distinct places in the letter which stated that the debtor had thirty days “after receipt of the notice,” but under the signature line, it stated “from the date of the letter.” This difference in wording could create confusion even to a sophisticated consumer as to when a response is required. Therefore, this confusion supported a valid legal claim sufficient to survive the motion to dismiss. Also, the collection agency’s use of “we” and omission of the language “by the debt collector” or its equivalent from the letter, sufficiently set forth a claim to survive a motion to dismiss.

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