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Misty M. Zemeckis v. Global Credit & Collection Corporation

May 11, 2012

MISTY M. ZEMECKIS, PLAINTIFF-APPELLANT,
v.
GLOBAL CREDIT & COLLECTION CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 0701--Blanche M. Manning, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED MARCH 27, 2012

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

In 2010, Misty Zemeckis ("Zemeckis") owed Capital One Bank money. Capital One Bank retained Global Credit & Collection Corp. ("Global Credit") to collect her debt. Global Credit, in turn, sent Zemeckis a dunning letter, which included a notice of her debt validation rights. Zemeckis claims, however, that the letter's content as a whole over- shadowed the debt validation notice, thereby violating Section 1692g of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692g. The district court disagreed and dismissed her claim. See FED. R. CIV. P. 12(b)(6). She presently appeals, arguing that the dis- trict court improperly rejected her request to conduct a consumer survey in order to prove that Global Credit's letter was confusing. We affirm the district court.

I. Background

On March 29, 2010, Global Credit, a debt collection company, sent Zemeckis a letter prompting her to pay her debt to Capital One Bank. Zemeckis, maintaining that the letter's content violated the FDCPA, brought a class action law suit against Global Credit. The letter's insistent language and repeated threats of legal action against her, she claimed, created a false sense of urgency that overshadowed statutorily mandated language in- forming her that she had thirty days to contest the validity of the debt. In particular, the letter "urge[d] [her] to take action now," as well as to "[c]all [Global Credit's] office today . . . ." It also stressed Capital One Bank's right to pursue legal action against her, warning that "[her] account now meets . . . [the] guidelines for legal action" and that "Capital One Bank (USA), N.A. may be forced to take legal action." Juxtaposed against the validation notice, which Global Credit placed on the back of the debt collection letter, the letter's language and structure obscured her legal rights and thwarted the notice required by the FDCPA.

Zemeckis contended that, in the alternative, the issue of whether the letter violated the FDCPA was an issue of fact, and requested that the district court permit her to conduct a consumer survey to test the overshadowing or confusing nature of the letter.

On March 24, 2011, Global Credit filed a motion to dismiss under Rule 12(b)(6). The district court granted the motion, finding, first, that our precedent dismisses language like "act now" as puffery that does not subvert a debtor's notice of his thirty-day validation right. The district court concluded, second, that our case law upholds the placement of the mandatory validation notice on the back of a collection letter as comporting with the FDCPA, especially when clear language on the front of the letter instructs the debtor to read the back of the letter for important information. Accordingly, the district court ruled that the letter was permissible under the FDCPA as a matter of law and denied Zemeckis' request to conduct a consumer survey. She appeals.

II. Discussion

We review the grant of a motion to dismiss de novo, accepting all well-pled facts as true and construing all inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this pleading standard when its factual allegations "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) ("[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.").

A. Zemeckis Fails to State a Claim Under FDCPA Sec- tion 1692g Under Section 1692g, a debt collector's dunning letter to a debtor must contain:

(1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) 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; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a). Section 1692g also dictates that "[a]ny collection activities and communication during the 30-day period may not overshadow or be incon- sistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." 15 U.S.C. § 1692g(b).*fn1

As we evaluate a debt collection letter's compliance with the FDCPA, we apply the "unsophisticated con- sumer" standard. Avila v. Rubin, 84 F.3d 222, 226-27 (7th Cir. 1996). The letter must be clear and compre- hensible to an individual who is "uninformed, naive, [and] trusting," Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003), but not without a rudimentary knowledge about the financial world or incapable of making basic deduc- tions and inferences, Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645 (7th Cir. 2009). Furthermore, "a signifi- cant fraction of the population" must find the letter confusing in ...


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