A District Court judge in Texas has granted a plaintiff’s motion for summary judgment after a collector was sued for allegedly violating the Fair Debt Collection Practices Act because it did not included the phrase “in writing” when providing the dispute disclosure in a collection letter.
A copy of the ruling in the case of Hackler v. Tolteca Enterprises, Inc., can be accessed by clicking here.
The plaintiff moved out of a rental home and the landlord determined repairs to the home were more than the security deposit that was made by the plaintiff. The landlord placed the account with the defendant to collect on the balance. The defendant sent the plaintiff a collection letter that included the following statement:
If you dispute the validity of this debt within 30 days, from receipt of this notice, we will mail verification of the debt to you. If you do not dispute the validity of this debt within 30 days, from receipt of this notice, we will assume it is valid. At your request, we will provide you with the name and address of the original creditor if different from the current creditor.
The plaintiff filed suit, alleging the letter violated Section 1692g(a)(4) and 1692g(a)(5) of the FDCPA by not informing her that the dispute must be filed in writing. The plaintiff also accused the defendant of violating Section 1692e(2)(a) because the letter did not explicitly state whether a collection fee was included in the balance due that was indicated in the letter.
Judge Xavier Rodriguez of the District Court for the Western District of Texas, San Antonio Division, ruled that the “in writing” must be present to not confuse the least sophisticated consumer. The ruling runs counter to a case from the Seventh Circuit Court of Appeals where the court determined that not including “in writing” in a collection letter did not amount to an FDCPA violation.
Judge Rodriguez looked at Osborn v. Ekpsz, LLC
The Seventh Circuit got it wrong. The FDCPA is a “strict liability” statute, so omitting statutorily required language is a violation. The court’s reasoning that there was “no harm, therefore no foul” deviates from the protections envisioned by Congress in writing the statute.