falsity is not relevant to whether Ozkaya has stated a claim under section 1692g. Instead, the issue is whether the language in the letter, true or not, overshadowed the notice. In sum, because we cannot say beyond doubt that Telecheck's letter did not overshadow its validation notice, Ozkaya's section 1692g claim must stand.
II. Omitting or Obscuring the Date of a Dunning Letter Does Not Violate the FDCPA
Ozkaya's second ground for relief under section 1692g must fail, however. Ozkaya alleges that the date Telecheck sent the letter was not clear from its face. She claims that this lack of clarity overshadowed her section 1692g rights because it impaired her ability to ascertain the amount of time she had to dispute the debt. Telecheck responds that the date the letter was sent is immaterial since the statute provides that the thirty-day period for disputing the debt begins to run when the debtor receives the notice, a date that only Ozkaya could know. In any event, Telecheck asserts, the letter was in fact dated -- as part of a bar code at the top of the letter.
The plain language of the statute defeats Ozkaya's claim. Section 1692g(a)(3) specifically provides that a validation notice must contain "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3) (emphasis added). Consequently, the only date that affects the consumer's right to dispute the debt, and thus the only date the consumer has to know for this purpose, is the date the letter was received. This result advances the FDCPA's aim to protect consumers from unscrupulous debt collectors and debt collection practices. See 15 U.S.C. § 1692(e). The statutory language clearly favors the consumer by running the thirty-day period from the date of receipt, a date later and more easily ascertainable by the debtor. As a practical matter, if the mailing date began the 30-day period, an unscrupulous debt collector could conceivably send a "pre-dated" letter, giving the consumer much less time to dispute the debt.
III. Ozkaya's Unauthorized Fee Allegations State a Section 1692(f) Claim
Count II of Ozkaya's complaint alleges that Telecheck's attempt to collect a $ 25.00 fee in addition to the amount of the debt violates FDCPA section 1692f(1). Section 1692f(1) prohibits collecting any amount in excess of the debt absent express authorization in the agreement creating the debt or unless such a fee is "permitted by law." 15 U.S.C. § 1692f(1). Because Ozkaya does not allege the existence of an agreement creating the debt with provisions relating to excess fees, we are limited to asking whether the fee is permitted by law. Federal courts look to state law in determining whether a fee is "permitted by law" under section 1692(f)(1). See, e.g., Ditty v. Checkrite, Ltd., 973 F. Supp. 1320, 1997 U.S. Dist. LEXIS 12568, 1997 WL 471115, at *4 (D. Utah Aug. 11, 1997) (since no agreement provided for fee, efforts to collect fee violated section 1692f(1) unless permitted by Utah law); Patzka v. Viterbo College, 917 F. Supp. 654, 659 (W.D. Wis. 1996) (collection of fee not allowed because Wisconsin law prohibits attachment of collection fees to consumer debts); West v. Costen, 558 F. Supp. 564, 582 (W.D. Va. 1983) (collection of fee permitted if expressly authorized by agreement or "otherwise permitted by state law").
Ozkaya contends that Telecheck's $ 25 service fee for her stopped check is not "permitted by law" because Illinois law is silent on the issue. Telecheck responds that express statutory permission is not necessary. It argues that because the FDCPA requires any fee to be expressly authorized by agreement, but not expressly permitted by law, the court is prohibited from judicially inserting the word "expressly" to limit the phrase "permitted by law." According to Telecheck, legislative history supports its interpretation because Congress rejected an amendment to section 1692(f)(1) stating that the fee must be expressly authorized by law.
We need not delve into the exercise of determining what significance to attribute to Congress' rejection of a particular amendment, however, because federal courts direct us to look for the answer in state law, where we have found two Illinois statutes that speak directly to the propriety of imposing and collecting service fees. The Illinois Collection Agency Act provides that, absent an agreement expressly authorizing collection of a fee in excess of the actual debt or claim, the fee must be "expressly authorized by law." See 225 ILCS 425/9. Therefore, Illinois law fills section 1692(f)(1)'s gap by requiring "express" legal authorization in order to impose service fees beyond the debt.
But no Illinois law provides express authorization in the situation present here -- namely for payment stopped on a check. To the contrary, the Illinois Commercial Code expressly authorizes a collection fee in only the following circumstances: when the "drawer [of a check] does not have an account with the drawee, or . . . drawer does not have sufficient funds in his account, or . . . drawer does not have sufficient credit with the drawee . . . ." 810 ILCS 5/3-806. Nowhere does the Code permit a debt collector to tack on a $ 25 service charge when the debtor has stopped payment on a check to the creditor.
Accordingly, Ozkaya has stated a section 1692(f)(1) claim based on Telecheck's service fee. Telecheck's only recourse is to produce an agreement authorizing this fee on a motion for summary judgment.
For the foregoing reasons, Telecheck's motion to dismiss is denied in part and granted in part. We find that Ozkaya has stated a valid claim under section 1692g insofar as it is based on her allegations that the language in Telecheck's letter overshadowed her right to dispute the debt. To the extent the 1692g claim is premised on Telecheck's failure to date the letter intelligibly, it is dismissed. Ozkaya has also stated an unauthorized fee claim under FDCPA section 1692(f)(1).
A status hearing will be held in open court on November 10, 1997 at 9:00 a.m. to set a schedule for briefing cross-motions for summary judgment.
United States District Judge
Dated: October 23, 1997