Ryan Boucher v. Finance System of Green Bay, I
Opinion
Plaintiffs sued defendant, a debt collection agency, for violations of the Fair Debt Collection Practices Act (“FDCPA”). Specifically, plaintiffs allege that defendant’s dunning letters were false and misleading because they threatened to impose “late charges and other charges” that could not lawfully be imposed. The district court dismissed plaintiffs’ claims because the challenged statement mirrors the safe harbor language that this Court instructed debt collectors to use in
Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC,
I. Background
Plaintiffs are Wisconsin residents who incurred and defaulted on debts for medical services. Plaintiffs’ creditors assigned these debts to defendant, Finance System of Green Bay, Inc. (“FSGB”), a collection agency. In turn, FSGB sent plaintiffs a letter informing them of their principal balance, their interest balance, and their total account balance. The letter also included the following statement:
As of the date of this letter, you owe $[a stated amount]. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check. For further information, write to the above address or call [phone number].
On January 30, 2017, plaintiffs filed a class action complaint against FSGB in the Eastern District of Wisconsin for violations of the FDCPA,
In its motion to dismiss, FSGB argued that it complied with the FDGPA as a matter of law because the allegedly false statement tracks the safe harbor language provided by this Court in Miller. FSGB further asserted that, although it may not lawfully impose “late charges and other charges,” the reference to such charges was not materially misleading because it is entitled to charge interest.
The district court granted defendants’ motion to dismiss. In doing so, it acknowledged that some of the
Miller
safe harbor language—namely, the phrase “late charges and other charges”—does not “strictly” apply in this case.
Boucher v. Fin. Sys. of Green Bay, Inc.,
No. 17-cv-132,
II. Discussion
We review de novo a district court’s decision to grant a motion to dismiss under Rule 12(b)(6).
Bible v. United Student Aid Funds, Inc.,
A. FSGB’s Dunning Letter is Materially False, Misleading, and Deceptive in Violation of § 1692e
The FDCPA broadly prohibits the use of any “false, deceptive, or misleading representation or means in connection with .the collection of any debt.” 15 U.S.C. § 1692e. Along with this general prohibition, the statute lists specific examples of prohibited conduct.
See id.', see also Nielsen v. Dickerson,
Even if a statement in a dunning letter is “false in some technical sense,” it does not violate § 1692e unless it would confuse or mislead an unsophisticated consumer.
See Wahl v. Midland Credit Mgmt, Inc.,
Moreover, “[a] statement cannot mislead unless it is material.”
Hahn v. Triumph P’hips, LLC,
Thus, to state a claim under § 1692e, plaintiffs must plausibly allege that FSGB’s dunning letter would materially mislead or .confuse an unsophisticated consumer. Because this inquiry involves a “fact-bound determination of how an unsophisticated consumer would perceive the statement,” dismissal is only appropriate in “cases involving statements that plainly, on their face, are not misleading or deceptive.”
Marquez v. Weinstein, Pinson & Riley, P.S.,
In
Lox v. CD A, Ltd.,
Here, as in
Lox,
the challenged statement is misleading to an unsophisticated consumer. The dunning letter states that, '“[b]ecause of interest, late charges and other charges that may vary from day to day, the amount due on the day you pay may be greater.” While creditors of medical 'debts may charge interest, FSGB admits that it Cannot impose “late charges and other charges” under -Wisconsin law. Therefore, the dunning letter falsely implies a possible outcome—the imposition of “late charges and other charges”—that cannot legally come to pass.
See
*368 The next question is whether the challenged statement is material—L&, whether the potential imposition of “late charges ■ and other charges” would influence an unsophisticated consumer’s decision to pay the debt. The district court reasoned that, as long-as the,debt collector communicates that the debt is variable, the ultimate basis for an increase is immaterial. Similarly, FSGB argues that “[a]ny consumer who owes a variable debt must decide whether to pay sooner than later to avoid that variance, regardless of whether any increase in the amount of the debt is due to the addition of interest, late charges, other charges, or some combination thereof.”
We'disagree. Of course, debtors always have
some
incentive to pay variable debts as quickly as possible, regardless of the source of variability. However, this incentive is, even greater if the debt collector threatens to impose “late charges and other charges” in addition to interest.
2
Here, the letter does not say how much the “late charges” are or what “other charges” might apply, so consumers are left to guess about the economic consequences of failing to pay immediately. But regardless of the amount of such charges, an unsophisticated consumer understands that these additional- charges could further increase the amount of debt owed, thus potentially making it- “more costly” for the consumer to hold off on payment.
This is especially true' for consumers who are subject to debt collection activity. We have acknowledged that “[w]hen default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness, or marital difficulties or divorce.”
McMillan,
In sum, plaintiffs have plausibly alleged that the dunning letter was materially false and misleading to an unsophisticated consumer in violation of § 1692e.
B. The Miller Safe Harbor Does Not Apply
FSGB argues that it is nevertheless immune from liability because it used the safe harbor language provided by this Court in Miller.
In
Miller,
we addressed whether defendants had violated a separate provision of the FDCPA: § 1692g(a)(l).
See
We further held that the defendants were not excused from complying with § 1692g(a)(l) simply because the amount owed changed daily. However, “in an effort to minimize litigation,” we fashioned the following safe harbor language for debt collectors to use if the amount owed is variable:
As of the date of this letter, you owe $_[the exact amount due]. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call l-800-[phone number].
Because the
Miller
decision only addressed § 1692g(a)(l), we have not previously addressed whether the safe harbor language also immunizes debt collectors from liability under § 1692e. However, most district courts in this Circuit have concluded that it does.
See, e.g., Washington v. Portfolio Recovery Assocs., LLC,
We agree with the majority of district courts that have addressed the issue for two reasons. First, the two statutory provisions at issue sometimes overlap: § 1692g(a)(l) requires debt collectors to state “the amount of the debt,” and § 1692e(2) prohibits debt collectors from making a “false representation of ... the character, amount, or legal status of any debt.” 15 U.S.C. §§ 1692g(a)(l), e(2). Thus, it makes sense to consider
Miller1
s safe harbor protection where, as here, plaintiffs allege that the debt collector violated § 1692e by misrepresenting the amount of the debt “in a manner identical to a Section 1692g claim.”
Wilder,
However, even, if a debt collector may generally rely on the safe harbor language to avoid liability under § 1692e,
Miller1
s accuracy requirement still applies. As we explained in
Miller,
a debt collector is only entitled to sáfe harbor protection if “the information he furnishes is accurate and he does not obscure it by adding confusing other information (or misinformation).”
In support of its position to the contrary, FSGB relies heavily on a single statement—indeed, a single word—in
Chuway v. Natl’s Action Fin. Servs., Inc.,
Admittedly, debt collectors may have followed our guidance in
Chuway
in a good-faith attempt to comply with the FDCPA. However, this statement was dicta because we concluded that
Miller
did not apply to the fixed debt in
Chuway.
Moreover, our statement in
Chuway
must be read in conjunction with
Miller,
which explained that a defendant is not entitled to safe harbor protection if it provides inaccurate information. In any event, our judicial interpretations cannot override the statute itself, which clearly prohibits debt collectors from making false and misleading misrepresentations.
See Oliva v. Blatt, Hasenmiller, Leibsker & Moore LLC,
At bottom, FSGB argues that debt collectors should be able to copy and paste the
Miller
safe harbor language to avoid liability under § 1692e, regardless of whether that language is accurate under the circumstances. This argument fails for
*371
two reasons. First, [ajlthough the safe harbor was offered in an attempt both to bring predictability to this area and to conserve judicial resources, it is compliance with the statute, not our suggested language, that counts.”
Williams,
In sum, debt collectors cannot immunize themselves from FDCPA liability by blindly copying and pasting the - Miller safe harbor language without regard for whether that language is accurate under the circumstances. Therefore, the district court erred by dismissing plaintiffs’ claims on this ground.
C. Plaintiffs Did Not Forfeit Their § 1692g(a)(l) Claim
The final issue is whether plaintiffs have forfeited their claim under § 1692g(a)(l). FSGB argues that plaintiffs abandoned this claim on appeal because their issue statement doés not reference it and they dedicate just one paragraph of their opening brief to it.
FSGB is wrong. As explained above, the claims under § 1692e and § 1692g(a)(l) overlap because plaintiffs allege that FSGB violated both provisions by misrepresenting the amount of the debt. Thus,, as plaintiffs point out, their discussion of whether the statement, was misleading under § 1692e “goes hand-in-hand with whether the amount of the debt has been accurately disclosed” under § 1692g(a)(l). Moreover, the safe harbor analysis is the same because, as. FSGB argues in its briefing, Miller applies equally to claims brought under both provisions. Therefore, plaintiffs have not forfeited their claims under § 1692g(a)(l). For the reasons outlined above,.plaintiffs have stated a claim under both § 1692g(a)(l) and § 1692e.
III. Conclusion
For the foregoing reasons, we Reverse the judgment of the district court.
. Moreover, even unsophisticated consumers understand that interest payments represent a contractual arrangement to pay more for the benefit of delaying full payment. In contrast, the purpose of "late charges” is to punish the consumer for violating the contract. The punitive nature of "late charges” might further incentivize an unsophisticated consumer to pay off the debt.
. Although the dunning letter uses the word "may,” the presence of hypothetical -language does not make the statement less confusing.
See Lox,
. It is worth noting that plaintiffs owed little to no interest on their medical-debts in this case. For example, plaintiffs Christopher and Michele- Dettloff had an interest balance of $0.00; plaintiff Adam Duch had an interest balance of $0.00; and plaintiffs Ryan and Heather Boucher had an interest balance of just $0.09. Because the amount of interest was negligible, the purported-‘‘late charges and other charges” would likely have played an even more important role in the consumer’s decision whether to pay the debt.
Reference
- Full Case Name
- Ryan BOUCHER, Et Al., Plaintiffs-Appellants, v. FINANCE SYSTEM OF GREEN BAY, INC., Et Al., Defendants-Appellees
- Cited By
- 349 cases
- Status
- Published