Eastern District of Wisconsin grants agency’s motion to dismiss consumers’ complaint on letter language and account balances. Editor’s note: This article is available for members only.
12/11/2020 10:00
By Patrick Newman
Math, even in “FDCPA-land,” is still math, which, as confirmed by a recently issued decision from the Eastern District of Wisconsin, even the unsophisticated sophisticated consumer is deemed capable of understanding.
In Slomanski v. Alliance Collection Agencies Inc., a pair of consumers attempted to challenge collection letters they received from the agency on two bases.
First, they argued that the letters were deceptive and misleading because they: listed several accounts, one with an amount owed of “0.00,” and a total of the amount owed for all of the accounts. The consumers alleged that, because the letters also stated the accounts had not been paid in full, “[a]n account balance of $0.00 is [therefore] inherently confusing and ambiguous.”
Next, the consumers alleged that “[a] consumer receiving a dunning letter stating that it is collecting an account with a balance of zero would believe that the actual balance of the account is a number greater than zero.” The consumers also alleged that the “$0.00” account “confused” them about the credit reporting status of the debt, whether they should dispute the debt, and that they found the letters to be “harassing.”
Second, one of the letters included the statement, “We have been authorized by our client to refer the account(s) listed above to an attorney for the purposes of initiating a lawsuit against you.” The suit claimed that this statement was “deceptive,” “misleading,” and “false” because the suit had not been commenced and because the letter allegedly represented that the agency would direct litigation against the consumer, when in fact it was the creditor that would direct the litigation.
In sum, the consumers lodged claims diametrically opposed to mathematical reality and everyday speech. Accordingly, the agency moved to dismiss.
The defense’s position is best summarized in the opening to the reply brief in support of the motion to dismiss:
"Despite living through a year that the history books surely will remember for its constant stream of curveballs, uncertain outlooks, and innumerable instances of public doubt, one thing is certain: we still live in a world where a zero balance in a collection letter means the consumer owes nothing on that account. And when a collection letter uses the term “refer,” that term still means what is has always meant."
The court agreed.
Concerning the consumers’ challenge to the “$0.00” notations, the court ruled that the “allegation that a consumer receiving such a letter would think the actual balance on the zero-balance account was a number greater than zero—i.e., that 0 ≠ 0—is the type of bizarre and idiosyncratic interpretation that not even an unsophisticated consumer would make.”
The court further determined the “$0.00” notation was immaterial—i.e., the notation did not inhibit the unsophisticated consumer’s ability to respond to the challenged letter.
As for the suit authorization statement, the court ruled that: “[e]ven the unsophisticated consumer would interpret the statement to mean exactly what it says—that Alliance was authorized by the creditor to refer the unpaid account to an attorney for possible legal action. The statement says nothing about directing litigation.”
Therefore, the consumer’s alleged interpretation of the suit authorization was not reasonable and could not support a claim. The court granted the agency’s motion and dismissed the complaint in its entirety.
This case represents a refreshing example of a commonsense judge saving the day in the face of a tortured reading of a truthful and accurate letter. Mark one point for the good guys and hold a good thought for more to come!
Newman is a shareholder with Bassford Remele in Minneapolis.