Debt collection letter's "immediate attention" language overshadows FDCPA's validation notice

Law Reporter, Sep 1999

CONSUMER

PROTECTION

Debt collection letter's "immediate attention"

language overshadows FDCPA's validation

notice.

Desantis v. Roz-Ber, Inc., - F. Supp. 2d _, No. CV 98

5195(ADS), 1999 WL 359271 (E.D.N.Y. May 28, 1999).

A U.S. district court held that a debt collection letter's language overshadows the validation notice required under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Sec 1692g et seq.

Here, a collection agency sent a debt collection notice to Desantis. Within the letter was written, "IMMEDIATE ATTENTION! If you would like our full cooperation then:

1. Remit payment in full to this office or, 2. Contact the undersigned. . . and arrange settlement." The words "IMPORTANT NOTIFICATION," and a listing of the FDCPA's 30-day debt validation notice requirement were immediately underneath that language. Desantis sued the agency, alleging that the language preceding the required validation notice overshadowed it, in circumvention of the FDCPA.

The trial court noted that when applying the statute, a court uses an objective standard-evaluating how the least sophisticated consumer would interpret the notice received by the debtor. Although case law does not require language to be threatening to overshadow or contradict an FDCPA validation notice, the court said that the letter here is threatening and has an obvious intent to evoke immediate payment from the debtor.

Specifically, the court said that the words "immediate attention," followed by an exclamation point raised significant concern. Moreover, the court found that the letter implicitly threatens a debtor that if he or she does not remit payment in full or contact the undersigned to arrange settlement of the debt, the collection agency will not give its "cooperation" to the debtor.

The court distinguished case law that held communications had not overshadowed the notice requirement as addressing less intrusive letters not calling for immediate payment in exchange for agency cooperation.

The court concluded that the least sophisticated debtor reading the letter here would likely never read the validation notice, but would be drawn to the section calling for "immediate attention," and then read the paragraph below it.

The court commented that even a savvy debtor reading the validation notice would likely remit payment or call the agency to obtain its "cooperation."

Plaintiff's Counsel:

Adam J. Fishbein, Uniondale, N.Y.

[Documents in other FDCPA cases are available through the Court Documents by Topic section in the back section of this issue.]