The United States District Court for the Eastern District of New York has dismissed a debtor’s claim that a collection letter stating “Non-interest Charges & Fees: $0.00” was misleading under the Fair Debt Collection Practices Act because an unsophisticated consumer could mistakenly believe that non-interest charges and fees might be added in the future. The court flatly rejected this argument, stating that such language “cannot possibly be alleged to be false, deceptive, unfair, or unconscionable.” The case is Yitzchok Dick v. Enhanced Recovery Company, LLC, 2016 U.S. Dist. LEXIS 135789 (E.D.N.Y. Sept. 28, 2016).
Dick alleged that a collection letter including the language “Non-interest Charges & Fees: $0.00” violated the FDCPA because it could be read to have different meanings, one of which is false. In the letter, the “Amount of Debt: $258.88” was listed together with an itemized breakdown which included the statement “Original Balance: $258.88” and “Non-interest Charges & Fees: $0.00.” In fact, no such fees were charged – or alleged to have been charged – but the letter contained no language specifically telling the debtor that such charges would not be imposed in the future. Dick argued that the absence of such a disclaimer violated the FDCPA under the Second Circuit’s holding in Avila v. Riexinger & Assocs (Avila II), 817 F.3d 72 (2d Cir. 2016), which held that a collection letter stating a “current balance” must also state that the balance may accrue interest and fees if it may in fact accrue interest and fees.
In Dick, however, the plaintiff did not allege that non-interest charges and fees had accrued, or would ever accrue in the future. In rejecting the plaintiff’s argument that an unsophisticated debtor could have been misled to believe such charges would accrue in the future, the Court explained that “such an interpretation contravenes the plain language of the [l]etter, which clearly sets forth the total amount of the debt and further provides an accounting of that debt.”
The court in Dick explained that the plaintiff’s reliance on Avila II was misplaced, noting that “there is no requirement that every statement in a debt collection notice include an extra assurance that the fact stated will not change in the future,” and that such a requirement “would result in complex and verbose debt collection letters that are confusing to the least sophisticated consumer – precisely the type of letter the FDCPA is meant to protect consumers against.”
The Court concluded that the collection letter at issue in Dick included “a simple and straightforward itemization of the debt allegedly owed” and that therefore the least sophisticated consumer cannot possibly be “in doubt of the nature and legal status of the underlying debt.”
Following Avila II, the debt collection industry has seen an influx of lawsuits with similar claims, but the clear and straightforward reasoning of the court in Dick – specifically its clarification of Avila II – will no doubt be helpful in defending such lawsuits in the future.