The bad news: Yet another District Court judge has ruled that there is no safe harbor from a violation of the Fair Debt Collection Practices Act when using the Model Validation Notice. The good news: Sending a Model Validation Notice without a date is not a violation of the FDCPA, that judge has ruled.
The Background: The plaintiff received an undated Model Validation Notice from the defendant, so the plaintiff filed an FDCPA lawsuit against the defendant claiming that the letter violated a number of provisions of the statute. Ultimately, the lack of a date made the letter appear less credible and legitimate than a letter with a date, and that created uncertainty and confusion in the eyes of the plaintiff. Had the letter been dated, the plaintiff claimed, she would have been more likely to make a payment.
The Safe Harbor: When it created Regulation F and the Model Validation Notice, the Consumer Financial Protection Bureau told collectors that if it used the MVN in a format that was the same or substantially similar to what the CFPB had produced, they would be covered under a safe harbor. But a number of judges from across the country have ruled that the safe harbor does not extend to the contents of what is included in the Notice. Judge Andrew P. Gordon of the District Court for the District of Nevada saw no reason to rule differently. “Based on the text of the regulation and the CFPB’s official interpretation of it, the CFPB’s safe harbor does not shield debt collectors from liability for violations of the FDCPA,” Judge Gordon wrote.
The Undated MVN: If the CFPB didn’t think it was important or material to have a date on the Model Validation Notice, Judge Gordon sees no reason to question that decision. “The CFPB is tasked with administering the FDCPA and its mission is to protect consumers,” Judge Gordon wrote. The plaintiff had claimed the lack of a date violated Sections 1692g(a), 1692g(b), 1692d, 1692e(2)(A), 1692e(10), and 1692f of the FDCPA, but Judge Gordon rejected each of those claims.
The Last Word: “Based on the objective standard, it is unreasonable for a least sophisticated debtor to believe that the letter is illegitimate based solely on the omission of a date,” Judge Gordon ruled. “Bergida alleges that the undated letter disadvantaged her from making an educated decision regarding the debt because she was unsure of the letter’s legitimacy. But the harm resulting from this confusion was reasonably avoidable by both her and a least sophisticated debtor. A least sophisticated debtor is willing to read with care, and therefore would be able to comprehend from the notices given that she could request information to verify the legitimacy of the debt or the letter.”
