Only in the collections industry does using the word “amicably” get a company into trouble.
A collection agency was partially successful in its motion to dismiss a lawsuit alleging it violated the Fair Debt Collection Practices Act, but was not entirely successful, because the a least sophisticated consumer may take the word “amicably” as a veiled threat of possible legal action down the road, a federal judge has ruled.
A copy of the ruling in Cadiz v. Credence Resource Management can be accessed by clicking here.
The plaintiff received a collection letter from the defendant related to an unpaid cell phone bill. The collection letter included the following language:
The above listed account owing to AT&T Mobility has been assigned to Credence Resource Management, LLC for collections. This account is currently delinquent and due in full. We would like to resolve this matter amicably, therefore please send your payment for the above amount …
The plaintiff filed suit, alleging the letter violated Section 1692e of the FDCPA because the letter “informed her that legal action was possible if the debt was left unresolved” even though the defendant did not intend to file suit.
In order to plead a violation of Section 1692e, the plaintiff must allege that the communication she received was “false, deceptive, or misleading.” Judge Andrea Wood from the District Court for the Northern District of Illinois noted that the language is clearly not misleading, but, in looking at the language from the standpoint of the least sophisticated consumer, the word “amicably” could “mislead the unsophisticated consumer into believing that litigation was a possibility if the debt were left unresolved.”
In that respect, Judge Wood denied the defendant’s motion to dismiss the 1692e claim. Judge Wood also denied the motion to dismiss a claim that the defendant violated Section 1692e(10) in that the plaintiff has “plausibly alleged” that the defendant used false misrepresentations or deceptive means to attempt to collect a debt.
The judge did rule that the plaintiff failed to state a violation of Section 1692e(5), which protects consumers from action that cannot be legally taken or is not intended to be taken. While agreeing that the threat of legal action was plausible, the intended action was not imminent, Judge Wood ruled, in granting the motion to dismiss that count of the complaint.
Though Cadiz might have been misled into thinking that Credence could possibly pursue litigation remedies, no recipient of such a letter, even if unsophisticated and naïve, could have plausibly understood Credence to be threatening imminent litigation.
