Tammy Smith v. Weltman, Weinberg & Reis Compa
Opinion
*764 Amy Dunbar and Tammy Smith received collection letters offering to settle their debts at a significant discount. Both letters included the warning: "This settlement may have tax consequences." In separate suits Dunbar and Smith claimed that this statement is misleading in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692e, because they were insolvent when they received the letters and therefore would not have incurred a tax liability for any discharged debts.
The courts below rejected that argument and dismissed the suits on the pleadings. We consolidated the appeals and now affirm. The challenged statement is not false or misleading because "may" does not mean "will" and insolvent debtors might become solvent before settling their debt, triggering the possibility of tax consequences.
I. Background
In January 2016 the Kohn Law Firm, S.C., a collection law firm, sent Amy Dunbar a letter seeking to collect a debt originally owed to a bank. The letter stated that the full balance due was $4,049.08 and offered to settle the debt for $2,631.90, but warned: "NOTICE: This settlement may have tax consequences." Dunbar was insolvent when she received the letter and filed for bankruptcy six months later.
That same month Weltman, Weinberg & Reis, also a collection law firm, sent Tammy Smith a collection letter seeking to collect a consumer credit-card debt. The letter stated that the balance due was $4,319.69 and invited Smith to contact the law firm to discuss satisfying her debt obligation for a reduced amount. Like Dunbar's letter, this letter warned: "This settlement may have tax consequences." Smith too was insolvent when she received the letter and filed for bankruptcy two months later.
Dunbar and Smith filed separate actions under § 1692e alleging that the collection letters were misleading because they were insolvent and therefore would not have had to pay taxes on any discharged debt. A magistrate judge and district judge, respectively, dismissed the cases for failure to state a claim. See FED. R. CIV. P. 12(b)(6). Both judges concluded that alerting debtors that a settlement "may" have tax consequences is neither false nor misleading.
II. Discussion
The FDCPA makes it unlawful for a debt collector to use "any false, deceptive, or misleading representation or means in connection with the collection of [a] debt." § 1692e. An objective "unsophisticated consumer" standard applies to § 1692e claims: We ask "whether a person of modest education and limited commercial savvy would be likely to be deceived" by the debt collector's representation.
Evory v. RJM Acquisitions Funding L.L.C.
,
Because this is a fact-laden inquiry, dismissal on the pleadings is proper only in "cases involving statements that plainly, on their face, are not misleading or deceptive."
Boucher v. Fin. Sys. of Green Bay, Inc.
,
To begin, the statement at issue here-"this settlement may have tax consequences"-is literally true. The discharge of a debt is generally considered taxable income.
A literally true statement may be misleading if it gives a false impression. The plaintiffs argue that the warning has this effect for two reasons. First, they contend that a debtor might read the tax-consequences statement to mean that if he does not pay the full balance owed, the debt collector or creditor will report him to the IRS. But the challenged statement says nothing whatsoever about IRS reporting, so we can safely disregard that proposed reading as "bizarre" or "idiosyncratic."
2
Gruber
,
Second, the plaintiffs insist that a debtor might read the reference to "tax consequences" to mean that he could incur a tax liability if he settles his debt for less than the full amount due, and that's contextually misleading because most recipients of debt-collection letters are insolvent and therefore would incur no tax liability from a discharged debt. We're not persuaded. An unsophisticated consumer would not understand the word "may" to mean "will." And an insolvent debtor can emerge from insolvency at any time.
Our decision in
Taylor v. Cavalry Investment, L.L.C.
,
*766 signals only that tax consequences are possible in the case of some debtors, not that tax consequences are possible or likely (much less certain) in this particular debtor's circumstances.
Further, contrary to the plaintiffs' argument, the tax-consequences warning does not give the false impression that debtors should pay their entire debt to avoid a tax liability. The letters are invitations to settle the debt and are clearly meant to encourage the debtor to take advantage of the discount offered. A rational debtor knows that income taxes are calculated as a percentage of income, and he would likewise understand that even if the discount counts as taxable income, the benefit would still outweigh the cost. That makes it all the more implausible that the tax-consequences warning would dupe a debtor into paying the full debt amount.
The plaintiffs rely heavily on our decision in
Lox v. CDA, Ltd.
,
The plaintiffs also rely on
Gonzales v. Arrow Financial Services
,
Another distinguishing feature in both Lox and Gonzales is that the conditions were static. There was no chance that the contract between the debtor and creditor in Lox would be rewritten to provide for attorney's fees. Nor was there any possibility that the old, obsolete debts in Gonzales would suddenly become reportable to a credit bureau. Solvency, on the other hand, is fluid. An insolvent debtor may become solvent before settling his debt. So it is not misleading to say that a debt settlement "may" result in a tax liability-not only because solvent recipients may face tax consequences but also because insolvent recipients like Dunbar and Smith could become solvent before settling their debts.
Yet another reason Lox and Gonzales do not apply here is that a debt collector has no reason or way to know whether an individual debtor is solvent or insolvent at a given time. In contrast, the debt collector in Lox knew (or could easily determine) whether the contract between the creditor *767 and debtor allowed for attorney's fees, and the debt collector in Gonzales was well aware that the debts it was collecting were obsolete and therefore not reportable to credit bureaus. Here, in contrast, a consumer would not expect a debt collector to know his financial status and therefore would not expect a debt-collection letter to be specially tailored to his particular financial circumstances, whether solvent or insolvent.
The plaintiffs also invoke a handful of district-court decisions, but all are inapplicable or unpersuasive. In
Drennan v. Van Ru Credit Corp.
,
Next, the plaintiffs point to district-court decisions finding collection letters misleading because they generalized that the debt collector was
required
to report settlements to the IRS without identifying the circumstances under which no such report was necessary.
See
Carlvin v. Ditech Fin. LLC
,
Finally, the plaintiffs hang their hat on
Sledge v. Sands
,
*768 In short, the § 1692e claims were properly dismissed on the pleadings. The tax-consequences warning is literally true and not misleading under the objective "unsophisticated consumer" test.
AFFIRMED .
In some situations an entity that discharges a debt must file a 1099-C form with the IRS. 26 U.S.C. § 6050P(a). No obligation to report exists if the principal debt forgiven falls below $600.
The plaintiffs' reliance on Federal Trade Commission commentary is misplaced for the same reason. The commentary in question discusses when a debt collector is permitted to threaten possible action by it or a third party. Statements of General Policy or Interpretation, Staff Commentary on the FDCPA,
The plaintiffs also analogize to several FTC Act cases from the 1950s and 1960s challenging deceptive advertisements promoting cures for baldness and fatigue.
See, e.g.,
Erickson v. F.T.C.
,
Reference
- Full Case Name
- Amy DUNBAR, Plaintiff-Appellant, v. KOHN LAW FIRM, S.C, Et Al., Defendants-Appellees. Tammy Smith, Plaintiff-Appellant, v. Weltman, Weinberg & Reis Company, LPA, Defendant-Appellee.
- Cited By
- 25 cases
- Status
- Published