Is there a way for a debt collector to structure a collection letter to make it appear that it is mandatory for the consumer to dispute the debt? Or that disputing a debt and making a payment are mutually exclusive? In a case that was defended by Rick Perr of Kaufman Dolowich & Voluck, a District Court judge in Colorado has granted a defendant’s motion for summary judgment after it was accused of violating the Fair Debt Collection Practices Act by doing just those things.
A copy of the ruling in the case of Garrett v. Financial Business and Consumer Solutions can be accessed by clicking here. Previously, the defendant had a motion to dismiss denied in the case.
The plaintiff received a collection letter from the defendant that included the following statement: “CALLING FOR FURTHER INFORMATION OR MAKING A PAYMENT IS NOT A SUBSTITUTE FOR DISPUTING THE DEBT.” As well, there were instructions at the bottom of the front page of the letter for the plaintiff to “SEE PAGE 2 FOR IMPORTANT DISCLOSURES.”
The plaintiff filed suit, alleging the letter violated Sections 1692e, 1692e(10), and 1692g(b) of the FDCPA. The plaintiff claimed the disclosure informing him that calling or making a payment was not a substitute for disputing the debt was misleading because it implied that disputing the debt was mandatory, not optional, it overshadowed the validation notice on the back page of the letter, and implied that disputing the debt was mutually exclusive to making a payment.
But Magistrate Judge Michael Hegarty of the District Court for the District of Colorado could not make the same leaps of logic that the plaintiff did in how the language in the letter was interpreted, especially because the plaintiff did not dispute the debt, even if he believed the instructions in the letter required him to do so.
With respect to the mutual exclusivity argument, Judge Hegarty determined that the plaintiff was just reading something into the language of the letter that wasn’t there. “… it is one thing to say that making a payment and disputing a debt are different, and another entirely to suggest that they are mutually exclusive,” Judge Hegarty wrote. “The phrase, ‘IS NOT A SUBSTITUTE FOR,’ does not carry any reasonable implication of exclusivity, and in fact demonstrates, when read in full context, that Defendant is informing Plaintiff that making a payment does not take the place of disputing the debt. In other words, both can be pursued without exclusivity. Plaintiff would take the plain meaning of, ‘IS NOT A SUBSTITUTE FOR,’ and replace it with ‘PRECLUDES.’ “
