In a non-precedential unpublished opinion, the California Court of Appeals has ruled that the right-to-cure provision in the Rosenthal Fair Debt Collection Practices Act can be applied to alleged violations where the type size of a collection letter is too small, but nonetheless reversed a lower court’s ruling dismissing the case because a motion for summary judgment drafted by the defendant went too far.
A copy of the ruling in the case of Timlick v. NCB Management Services, Inc., can be accessed by clicking here.
The plaintiff received a collection letter from the defendant and filed a class-action suit, alleging the letter violated Section 1812.701(b) of California’s RFDCPA because it contained type that was smaller than 12-point, which is what the law requires. After it was served with the complaint, the defendant sent an updated letter to the plaintiff with the type size fixed so that it complied with the RFDCPA. The defendant than filed a motion for summary judgment, arguing, under the law’s right-to-cure provision, it had addressed the issue. The plaintiff argued that the right-to-cure provision did not apply to point-size issues in letters. A judge disagreed, and asked the defendant’s counsel to draft a motion for summary judgment. The order granted the motion while also dismissing the case without prejudice and not giving the plaintiff a chance to amend its complaint.
The Appeals Court ruled that the right-to-cure provision does, in fact, apply to the point-size issue in collection letters because the plaintiff did not allege that he suffered any harm from the alleged violation.
“He does not claim, for example, that he was unable to enforce his rights as a debtor due to the illegibility of the disclosures in the initial collection letter,” the Appeals Court wrote. “On this record, then, the type-size violation did not cause a harm or ill effect that could not be undone, and the violation was therefore one that was curable by a timely and type-size-compliant follow-up letter.”
However, the Appeals Court overturned the lower court’s decision, ruling that the dismissal of the suit “exceeded the scope” of the defendant’s motion for summary judgment, and remanded the case back to the trial court.
