In one of the first cases to rule on whether leaving the date off the Model Validation Notice is a violation of the Fair Debt Collection Practices Act, a District Court judge in Florida has denied a motion to dismiss on three counts — granting it on the fourth — ruling that a “reliance on the Model Form overstates both the meaning and scope of the regulatory safe harbor provided by the” Consumer Financial Protection Bureau, and that a least sophisticated consumer might be confused by the document.
A copy of the ruling in the case of Roger v. GC Services can be accessed by clicking here.
In a tale that has become all-too familiar to the readers of this site, the plaintiff received a copy of the Model Validation Notice from the defendant. Copying the model exactly as it was published by the CFPB, the notice was undated. The notice informed the plaintiff that “as of December 21, 2021,” he owed $4,111.78. It also disclosed that “between December 31 and today” $0.00 in interest and fees had accrued on the debt. The plaintiff was informed he had until September 30 to contact the defendant to dispute all or part of the debt or to seek verification.
The plaintiff filed suit, alleging the letter violated Sections 1692d, 1692e, 1692f, and 1692g of the FDCPA.
The defendant sought to dismiss the suit, arguing that the plaintiff failed to state a claim for relief. The notice “conforms exactly to” the form published by the CFPB and that means it should be sheltered under the safe harbor provided to those who use the form as published.
But Judge Cecilia Altonaga of the District Court for the Southern District of Florida said that the safe harbor does not extend to the substance of what is included in the document. Furthermore, the safe harbor likely only extends to violations of Section 1692g, not the other sections of the FDCPA, Judge Altonaga determined. When it comes to a motion to dismiss — if I learned one thing from the Hunstein case — it’s that a judge must assume everything the plaintiff says is true. In this situation, “[i]t is more than reasonable to infer from, and even agree with the plausibility of Plaintiff’s allegations, that a recipient of the Letter would be misled as to the amount of the debt,” Judge Altonaga wrote.
Judge Altonaga did dismiss the 1692d claim, but denied the motion to dismiss on the 1692e, 1692f, and 1692g claims.
