–by Andriy Troyanovych
Source: Carlin v. Davidson Fink L.L.P., No. 15-3105-cv, 2017 WL 1160887 (2d Cir. Mar. 29, 2017)
Abstract: On March 29, 2017, the Second Circuit held that a letter to a consumer debtor providing a “Total Amount Due” and then following that with small print that states that the amount may include other fees was improper under the Fair Debt Collection Practices Act.
Facts and Procedural History
Davidson Fink, a debt collection and foreclosure firm, instituted collection proceedings against Andrew Carlin, who had allegedly defaulted on a 2005 mortgage. Davidson Fink filed a Foreclosure Complaint against Carlin. Davidson Fink sent a copy of the letter to Carlin, along with a “Notice Required by the Fair Debt Collection Practices Act,” which essentially told Carlin that the debt is assumed valid, unless he disputes it within 30 days. However, the complaint did not state a total amount owed.
Carlin promptly notified Davidson Fink and disputed the validity of the debt by requesting a verification of the total dollar amount owed. Thereafter, in August 2013, Davidson Fink sent Carlin a letter containing a payoff statement including a “Total Amount Due” of $205,261.79. But, just below the payoff statement was small print that read “Total Amount Due may include estimated fees, costs, additional payments and/or escrow disbursements that will become due prior to the ‘Statement Void After’ date, but which are not yet due as of the date this Payment Statement is issued.” Carlin then initiated proceedings against Davidson Fink alleging that the firm violated the FDCPA, particularly the section that requires a debt collector to send the debtor a written notice containing “the amount of the debt.” After reconsideration by the district court led to a dismissal of Carlin’s complaint for failure to state a claim, he appealed that decision to the Second Circuit Court of Appeals.
Second Circuit Decision
The Second Circuit vacated and remanded. The court applied the “least sophisticated consumer” standard to find that “[b]ecause Carlin ha[d] adequately alleged that the August letter [was] an initial communication sent by a debt collector . . . and that it does not clearly state the amount of the debt,” the lower court decision was vacated and remanded.
In assessing Carlin’s claim, the court looked to whether (1) any of his communications with Davidson Fink were “initial communications” within the meaning of 15 U.S.C. § 1692g(a); (2) any of the communications were “in connection with the collection of any debt”; and (3) whether Davidson Fink provided the amount of debt within five days of such communication.
The court found quite convincingly that the August letter was the initial communication, and also that it was in connection with the collection of a debt as shown by the letter’s unambiguous communication. The court then found that Davidson Fink did not adequately state the amount of the debt Carlin owed in the August letter. Because of the small print after the “Total Amount Due,” the “least sophisticated consumer” would not be likely to determine whether those amounts were properly part of the amount of the debt. The court went on to further reason that “[a]bsent fuller disclosure, an unsophisticated consumer may not understand how these fees are calculated, whether they may be disputed, or what provision of the note gives rise to them.”
The court did point out that it was not forbidding debt collectors to include such fees in their payment statements, however, in order to do so, a debt collector should take special care to include a separate “Total Amount Due” that would “clarify the actual amount due, the basis of the fees, or simply some information that would allow the least sophisticated consumer to deduce the amount she actually owes.” This would satisfy the requirements of the FDCPA, and also provide more clarity to the debtor.