John A. Heibl
Id. at *5. Applying the Bartlett court's reasoning and safe harbor letter to the case at hand, we must conclude that the defendants did not violate § 1692g.
The Vasquez letter begins with, and in fact is largely comprised of, the validation notice explaining Vasquez's right to demand verification in writing and dispute the debt within thirty days; nothing else in the letter could cause confusion about these rights. First, there is no direct contradiction -- nothing demands payment or any other action within a period shorter than thirty days. See, e.g., Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996) (letter giving debtor ten days to pay "or else" inconsistent with thirty days allowed by validation notice); Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518-19 (7th Cir. 1997) (telling debtor that collection agency must receive payment within thirty days contradicts debtor's right to send notification of dispute within thirty days). Nor does the letter contain language that "overshadows" the notice by threatening ominous action if Vasquez doesn't act quickly. See, e.g., Russell v. Equifax A.R.S., 74 F.3d 30, 34-35 (2d Cir. 1996) (informing debtor that payment within ten days would prevent posting collection to his file rendered notice "ineffective"); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991) (threat to sue within ten days would induce debtor "to overlook his statutory right to dispute the debt within 30 days."); Vaughn v. CSC Credit Servs., Inc., 1995 U.S. Dist. LEXIS 1358, 1995 WL 51402, at *3 (N.D. Ill. Feb. 3, 1995) (threat to add "this account" to debtor's credit bureau record if no immediate payment or phone call overshadowed validation rights). There is not even an apparent contradiction that fails to explain how the thirty-day right to demand verification fits together with a creditor's right. See, e.g., Bartlett, 128 F.3d 497, 1997 WL at *3; Ozkaya v. Telecheck Servs., Inc., 982 F. Supp. 578, 1997 WL 672027, at *4-*5 (N.D. Ill., 1997) (warning that "any delay" in payment "may affect your ability to use checks" could confuse unsophisticated consumer because it fails to explain how this comports with thirty-day validation rights). Instead, the letter begins with the verification notice, right on the front of the letter, and does not hide it with an obscure reference to the reverse side of the letter, bury the notice in small print, or encourage its disregard in any way.
We reject Vasquez's assertion that the letter's one-sentence request to "kindly let me have your immediate attention and cooperation by sending me your payment or contacting me without further delay" somehow creates confusion. While a demand for immediate payment may overshadow a validation notice, the letter does not demand payment immediately or within any time period less than thirty days. Rather, the letter asks for Vasquez's immediate attention, a request that has never been found to violate section 1692g. The phrase "merely recommends that" Vasquez "look into the matter as soon as possible." Gammon v. Belzer, 1997 U.S. Dist. LEXIS 5170, at *10 (N.D. Ill. Apr. 11, 1997) (holding that the statement "your immediate attention to this matter is in your best interest" did not violate § 1692g).
The rest of the sentence, "by sending me your payment or contacting me without further delay," is a permissible effort to collect the debt. "Section 1692g does not require the debt collector to suspend collection activities. Rather, the debt collector need only cease collection if the consumer disputes the debt or requests the name and address of the original creditor within the validation period, and then only until it mails a copy of the verification to the consumer." Trull v. GC Servs. LTD Partnership, 961 F. Supp. 1199, 1205 (N.D. Ill. 1997); see Bartlett, 128 F.3d 497, 1997 WL 616675 at *5 ("The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor."). Instead of demanding conduct that is inconsistent with the debtor's thirty-day verification rights, the letter simply provides the debtor with a possible course of action: payment (with no specified time limit) or contact (also with no time limit). Recognizing the propriety of presenting the debtor with such options in addition to his verification rights, the Bartlett safe-harbor letter incorporates similar language. It asks that the debtor either pay or contact the debt collector to make payment arrangements within one week to stave off a lawsuit. 128 F.3d 497, 1997 WL 616675, at *5. Like the safe harbor letter, the Vasquez communication would not confuse the unsophisticated consumer into believing that he no longer had thirty days to dispute the debt.
Equally fruitless is Vasquez's argument that asking the debtor to contact defendants "without further delay" induces a waiver of section 1692g rights. Because debt verification requests must be written, Vasquez claims that the defendants' request for "contact" encourages unwritten communication that would not be effective to exercise his verification rights. In support of this position, Vasquez cites Flowers v. Accelerated Bureau of Collections, Inc., 1997 U.S. Dist. LEXIS 3354 (N.D. Ill. Mar. 13, 1997), modified on reconsideration, 1997 U.S. Dist. LEXIS 6070 (N.D. Ill. Apr. 29, 1997). Flowers held that the debtor stated a 1692g claim when he received a second collection letter that omitted the thirty-day validation notice and demanded that the debtor phone or write the collection agency immediately. Because the phone call demand "implies that Ms. Flowers could dispute her debt by telephone," it contradicted the validation notice contained in the first letter, which explained that verification demands must be in writing. Id. at *19. That the second letter neither reprinted the validation notice nor referred to the notice contained in the first letter made it unlikely that the debtor would realize debt disputes must be written, not phoned. Id.
Flowers is inapposite to this case. First, the letter here just asks for "contact." It says nothing about a phone call, and does not even list the defendants' phone number anywhere other than in the letterhead. Second, unlike the second letter in Flowers, this communication contains a validation notice, printed conspicuously up front at the beginning of the letter.
The notice clearly informs the debtor that debt disputes must be presented in writing. Consequently, the Vasquez letter does not leave the unsophisticated consumer with the mistaken impression that he can dispute the debt by telephone.
The remainder of plaintiffs' overshadowing cases are likewise distinguishable, either because they demand payment within a time period that contradicts the validation notice, threaten the debtor with adverse action, or fail to explain how the debt collector's right to sue and the debtor's verification rights fit together. See Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518-19 (7th Cir. 1997) (required payment within thirty days); Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996) (demanded payment within ten days); Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir. 1991) ("THIS IS A DEMAND FOR IMMEDIATE FULL PAYMENT OF YOUR DEBT," and direction to "PHONE US . . . TODAY"); Vaughn v. CSC Credit Servs., Inc., 1995 U.S. Dist. LEXIS 1358, 1995 WL 51402, at *3 (N.D. Ill. Feb. 3, 1995) ("Please either send us PAYMENT IN FULL today or immediately call our office to discuss this account. Otherwise, this account could be added to your credit bureau record and adversely affect your ability to obtain credit for up to seven years."); Adams v. Law Offices of Stuckert & Yates, 926 F. Supp. 521, 524 (E.D. Pa. 1996) ("If I do not receive prompt payment I must take further action to collect this debt, and I do not have to give you any further notice. I may bring a lawsuit . . . ."). The letter here has none of these shortcomings. For the reasons above, Vasquez's section 1692g claim fails as a matter of law.
II. Vasquez Fails to State a FDCPA Claim Under § 1692e
Vasquez contends that the very same allegedly overshadowing and contradictory language that transgresses section 1692g is also misleading and, as such, violates section 1692e as well. He points to no other false, deceptive, or misleading representations by the defendants. Absent any other basis for Vasquez's section 1692e claim, our overshadowing determination is dispositive because the only way in which he claims this language is misleading is that it contradicts and overshadows. As such, the validity of Vasquez's section 1692e claim rests wholly on our finding a violation of section 1692g. Our failure to do so renders the section 1692e claim deficient as a matter of law. Accordingly, we dismiss it.
For the foregoing reasons, defendants' motion to dismiss is granted. Plaintiff's pending motions for summary judgment and class certification are hereby denied as moot. See Allen v. Aronson Furniture Co., 971 F. Supp. 1259, 1261 (N.D. Ill. 1997). This lawsuit is dismissed with prejudice. The Clerk of the Court is directed to enter judgment in favor of the defendant and against the plaintiff pursuant to Fed. R. Civ. P. 58.
United States District Judge
December 5, 1997