How Courts Analyze Cases Involving Misleading and Confusing Letters

FDCPA Claims, Written communications

The FDCPA  contains very specific provisions that require bill collectors to include specific disclosures in collection letters.   These required notices include:

  • amount of the debt
  • name of the creditor
  • a statement that unless the debtor “disputes the validity of the debt” within thirty days the debt collector will assume that the debt is valid but that if the debtor notifies the collector in writing within thirty days that he is disputing the debt, “the debt collector will obtain verification of the debt [from the creditor] . . . and a copy of [the] verification . . . will be mailed to the consumer.”
  • upon his request the debt collector will give the debtor the name and address of his original creditor, if the original creditor is different from the current one
  • If the debtor accepts the invitation tendered in the required notice, and requests from the debt collector either verification of the debt or the name and address of the original debtor, the debt collector must “cease collection of the debt . . . until the [requested information] is mailed to the consumer.

If the bill collector fails to include these notices, it will be liable to the debtor for $1,000 + actual damages + reasonable attorney’s fees.

What happens if a collection letter includes these notices but also includes other language that confuses the message?

This is exactly what happened in a well known Wisconsin case back in the mid-1990’s that offers helpful guidance to both debtors and creditors about confusing information in a collection letter.

In the Bartlett v. Heibl case, creditor’s attorney Heibl included the above notices but also included a threat that if the debtor did not pay within a week, he could be sued.  The problem:  attorney Heibel’s letter demanded action within 1 week, but it also offered rights under the statute that could be exercised within 30 days during which collection activities would be ceased.

What would happen if debtor Bartlett did nothing for 10 days, then asserted his rights requesting verification of the debt?   As the appeal court noted, these two statements in Heibls’ letter are contradictory and therefore confusing, thereby turning the required disclosure into “legal gibberish.”

The appeals court (in the 7th Judicial Circuit) reversed the lower court’s ruling and held in favor of debt Bartlett.  The court also took the unusual step of re-writing Heibl’s letter to include both the required disclosures and the threat of litigation in a format that would satisfy the FDCPA’s notice requirements and not be confusing.  This sample letter, now known as a “Bartlett letter” has been thereafter used by creditors in the 7th Circuit and elsewhere.   Presumably bill collectors in the 7th Circuit who use a Bartlett letter would have a strong argument to protect themselves from FDCPA liability.

The Bartlett v. Heibl case is very helpful reading in that it offers a very clear analysis of how an appellate court analyzes the FDCPA.  This is the type of analysis that I would use when reading collection correspondence that has been mailed to a potential FDCPA client.

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Jonathan Ginsberg

For over 25 years, Jonathan Ginsberg has represented honest, hardworking men and women facing financial troubles.

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