Undated Model Debt Violation Notice Does Not Violate the FDCPA

On October 31, 2023 a district court in Nevada held that an undated, model form debt validation notice does not violate the Fair Debt Collection Practices Act (FDCPA). In Bergida v. PlusFour, Inc., the defendant sent a debt validation letter to the plaintiff that followed the model form provided by the Consumer Financial Protection Bureau (CFPB). The letter was not dated. The plaintiff claimed the letter violated FDCPA §§ 1692d, e, f, and g because she could not determine what date was “today” and “now,” which allegedly misled her about the status of the debt, confused her, made the letter seem illegitimate and suspicious, and caused her to spend time and money trying to figure out whether the debt was valid. When considering the defendant’s motion to dismiss, the court applied the least sophisticated debtor standard and found that the plaintiff failed to state a claim.

The court rejected the defendant’s claim that using the CFPB model validation notice provided it a safe harbor from suit. The court noted that while Regulation F states use of the model letter provides a safe harbor from claims under 12 C.F.R. §§ 1006.347(c) and (d)(1), the safe harbor provision does not shield debt collectors from liability under any other statutes.

However, an analysis of the plaintiff’s claims under the FDCPA still resulted in judgment in the defendant’s favor. The court found the defendant did not violate § 1692g(a), which requires the debt collector to state the amount of the debt. Nothing in § 1692g(a) requires a date on the notice and the plaintiff did not plausibly allege how omitting the date impacted information about the amount due. The court noted the model notice does not include a date either.

Similarly, there was no overshadowing in violation of § 1692g(b). The plaintiff claimed that without a date, she could not verify the defendant sent her the notice within five days of the initial communication and provided her 30 days to respond. The court noted there was no allegation of any prior communication and because the 30-day time period begins from the date of receipt of the letter, the date it was sent is irrelevant.

The plaintiff’s remaining claims fared no better. The court agreed with the defendant that not including a date on a letter does not rise to the level of harassment, oppression, or abuse prohibited by § 1692d. The plaintiff asserted a violation of § 1692e(2)(A) alleging the letter falsely represented the true character or status of the debt, but failed to state how the information in the letter was false or incorrect. Her claims under §§ 1692e(10) and (g) that the lack of a date made the letter false and misleading because she was unsure about its legitimacy failed because a least sophisticated debtor would not be misled about the legitimacy of the letter simply because it did not have a date. The district court rejected the plaintiff’s § 1692f claim that failing to include a date omitted a material term from the letter which prevented her from making an educated decision. Even for the least sophisticated debtor, the court found, the letter itself offered ways to validate the communication.

The court ultimately granted the defendant’s motion to dismiss, holding that the plaintiff could amend her complaint only if she could assert other conduct that would support a violation of the FDCPA.