Member Blog: 3rd Circuit Explains That the ‘Least Sophisticated Consumer’ is Presumed to Have a Willingness to Read Collection Letters with Care

The plaintiff in this case argued a collection letter violated the FDCPA because it would confuse the “least sophisticated consumer.”

6/9/2021 9:00 AM

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Member Blog: 3rd Circuit Explains That the ‘Least Sophisticated Consumer’ is Presumed to Have a Willingness to Read Collection Letters with Care

By Jamie Cotter and Kersten Holzhueter


In the recent 3rd Circuit opinion in Moyer v. Patenaude & Felix A.P.C., the plaintiff brought a putative class action alleging that Patenaude and Felix violated the Fair Debt Collection Practices Act by sending her a single collection letter. The letter advised the plaintiff that her debt had been assigned to the firm and stated: “If you wish to eliminate further collection action, please contact us at 800-832-7675 ext. 8500.” 

The letter then went on to advise the plaintiff of her validation rights under Section 1692g of the FDCPA. Resolution of the alleged class-action claims required the 3rd Circuit to decide whether the inclusion of the single sentence inviting a call would confuse the least sophisticated consumer.

The plaintiff first argued that the letter violated Section 1692e(10) because the invitation to “eliminate” collection action through a phone call would deceive the least sophisticated consumer into believing that a call would, by law, require collection efforts to cease. The 3rd Circuit held that plaintiff read “into the invitation [to call] an implication that it does not create.” That is, nothing in the letter stated that a phone call would force the law firm to cease collection activities. Therefore, the 3rd Circuit affirmed the entry of summary judgment in favor of the defendant on this claim.

The plaintiff then argued that the letter violated Section 1692g because the letter would confuse the least sophisticated consumer into being unsure how to exercise her validation rights. The 3rd Circuit determined that the plaintiff “sees confusion where none exists.” It was undisputed that the letter contained the requisite validation language under Section 1692g. The court determined that the sentence inviting a call to resolve the debt did not create any confusion with respect to a consumer’s validation rights under Section 1692g.

By entering its decision, the 3rd Circuit rejected the notion that the least sophisticated consumer is not capable of reading the plain language of a letter and understanding his or her rights. The 3rd Circuit unequivocally held that these garden-variety and hyper-technical overshadowing claims must fail when they do not presume “a basic level of understanding and willingness to read with care.”  This common-sense opinion is a piece of good news for debt collectors who continue to face these types of claims.

Kersten Holzhueter is a partner at Spencer Fane LLP in the firm’s Kansas City, Missouri, office. Jamie Cotter is a partner in the firm’s Denver office.

Editor’s note: This content is published with permission from Spencer Fane. This article is provided for informational purposes and is not intended nor should it be taken as legal advice. The views and opinions expressed in this article are those of the author in [his][her] individual capacity and do not reflect the official policy or position of their partners, entities, or clients they represent.

ACA members may read more on this case here:

Moyer v. Patenaude & Felix: Invitation to Call Debt Collector Was Not Deceptive or Confusing

  • If you are interested in sharing articles and analysis on legal cases, industry laws and regulations or other relevant topics for possible publication with ACA International, email our Communications Department at comm@acainternational.org.
  • Join the discussion on legal and compliance topics with your fellow members on the Members Attorney Program community on The Hub. Simply log on to The Hub and select Members Attorney Program under the Communities menu.
  • If you’ve recently obtained a judicial opinion that might benefit other ACA members, email it to us: dailydecision@acainternational.org.

Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

Member Blog: 3rd Circuit Explains That the ‘Least Sophisticated Consumer’ is Presumed to Have a Willingness to Read Collection Letters with Care

By Jamie Cotter and Kersten Holzhueter


In the recent 3rd Circuit opinion in Moyer v. Patenaude & Felix A.P.C., the plaintiff brought a putative class action alleging that Patenaude and Felix violated the Fair Debt Collection Practices Act by sending her a single collection letter. The letter advised the plaintiff that her debt had been assigned to the firm and stated: “If you wish to eliminate further collection action, please contact us at 800-832-7675 ext. 8500.” 

The letter then went on to advise the plaintiff of her validation rights under Section 1692g of the FDCPA. Resolution of the alleged class-action claims required the 3rd Circuit to decide whether the inclusion of the single sentence inviting a call would confuse the least sophisticated consumer.

The plaintiff first argued that the letter violated Section 1692e(10) because the invitation to “eliminate” collection action through a phone call would deceive the least sophisticated consumer into believing that a call would, by law, require collection efforts to cease. The 3rd Circuit held that plaintiff read “into the invitation [to call] an implication that it does not create.” That is, nothing in the letter stated that a phone call would force the law firm to cease collection activities. Therefore, the 3rd Circuit affirmed the entry of summary judgment in favor of the defendant on this claim.

The plaintiff then argued that the letter violated Section 1692g because the letter would confuse the least sophisticated consumer into being unsure how to exercise her validation rights. The 3rd Circuit determined that the plaintiff “sees confusion where none exists.” It was undisputed that the letter contained the requisite validation language under Section 1692g. The court determined that the sentence inviting a call to resolve the debt did not create any confusion with respect to a consumer’s validation rights under Section 1692g.

By entering its decision, the 3rd Circuit rejected the notion that the least sophisticated consumer is not capable of reading the plain language of a letter and understanding his or her rights. The 3rd Circuit unequivocally held that these garden-variety and hyper-technical overshadowing claims must fail when they do not presume “a basic level of understanding and willingness to read with care.”  This common-sense opinion is a piece of good news for debt collectors who continue to face these types of claims.

Kersten Holzhueter is a partner at Spencer Fane LLP in the firm’s Kansas City, Missouri, office. Jamie Cotter is a partner in the firm’s Denver office.

Editor’s note: This content is published with permission from Spencer Fane. This article is provided for informational purposes and is not intended nor should it be taken as legal advice. The views and opinions expressed in this article are those of the author in [his][her] individual capacity and do not reflect the official policy or position of their partners, entities, or clients they represent.

ACA members may read more on this case here:

Moyer v. Patenaude & Felix: Invitation to Call Debt Collector Was Not Deceptive or Confusing

  • If you are interested in sharing articles and analysis on legal cases, industry laws and regulations or other relevant topics for possible publication with ACA International, email our Communications Department at comm@acainternational.org.
  • Join the discussion on legal and compliance topics with your fellow members on the Members Attorney Program community on The Hub. Simply log on to The Hub and select Members Attorney Program under the Communities menu.
  • If you’ve recently obtained a judicial opinion that might benefit other ACA members, email it to us: dailydecision@acainternational.org.

Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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