If a tree falls in the forest and nobody is around to hear it, does it make a sound? Similarly, if a statement in a collection letter allegedly violates the Fair Debt Collection Practices Act, but the recipient of the letter testifies that she doesn’t recall ever seeing it, does it break the law?
In a case that was defended by Lori J. Quinn of Gordon Rees Scully & Mansukhani, a District Court judge in New Jersey has ruled that the plaintiff in such a case does not have standing to sue because she never suffered the concrete injury she alleged, and has granted a defendant’s motion for summary judgment.
A copy of the ruling in the case of Oh v. Collecto can be accessed by clicking here.
The defendant sent a collection letter to the plaintiff and followed that letter with a phone call. The plaintiff’s husband answered the call and claimed to be the plaintiff. During the call, the husband disputed the debt. That triggered the defendant to send another letter to the plaintiff. This letter included the statement, “If we have not received your documentation by 05/24/19, your claim will be closed and you will be held responsible for payment of all charges billed to your account.”
The plaintiff filed suit, alleging the statement violated several subsections of Section 1692e of the FDCPA by making false, deceptive, or misleading representations in connection with the collection of a debt. The crux of the plaintiff’s argument was that the statement in the second letter suggested that if she did not provide the information requested, she would be liable for the debt.
But during testimony given during a deposition, the plaintiff admitted that she had not seen, or could not recall seeing, the second letter, and that she does not “open letters that much.” Even if she did open the letter, she stated during her testimony that she cannot read documents written in English.
The defendant filed a motion for summary judgment, arguing that the plaintiff lacked standing to sue because she could not claim to have suffered a concrete injury. Judge Kevin McNulty of the District Court for the District of New Jersey agreed.
“Because Mrs. Oh had never seen or read the allegedly violative letter, it could not have confused her about her rights, or otherwise harmed her,” Judge McNulty wrote. “Nor does the Complaint include any allegations indicating some other way the letter could have harmed Mrs. Oh without her seeing it.”
The plaintiff attempted to put forth a second theory — that her credit rating was negatively impacted when the debt was reported to the credit reporting agencies by the defendant, but Judge McNulty refused to consider the argument because it was not included in the plaintiff’s complaint.
