Seventh Circuit holds dunning letter not misleading by including validation notice on the second page

The Seventh Circuit in O’Boyle v. Real Time Resolutions, Inc., 910 F.3d 338, 341–48 (7th Cir. Dec. 7, 2018) affirmed a Wisconsin district court’s ruling that a letter which stated that important information was on the back of its first page, but the required validation notice was actually on the front of its second page, did not overshadow the FDCPA’s statutorily mandated validation notice.

The debt collector sent the consumer a dunning letter consisting of two pages. The front side of the first sheet had a box directing the consumer to see the reverse side “for additional important information regarding this account”. The bottom of the page was paginated, “1 of 2.” The back of the first page contained notices pertinent to residents of other states but did not include any pagination.

On the front of the second page came the FDCPA-required validation notice and other information. The text was clear, prominent, and readily readable. The font was normal in shape and size—essentially the same font as most of the letter. The bottom of the second page is paginated “2 of 2.” The back of the second sheet is blank.

The consumer argued that the letter would mislead an unsophisticated consumer because although the front of page 1 directed the reader to “the back of this page for additional important information” that “additional important information” did not include the notice, which, instead was at the second sheet’s front top. Debtor also argued that the letter misdirected consumers away from the validation notice. And the misdirection falsely represented that the notice was unimportant, and overshadowed the disclosure of dispute rights.

The district court dismissed the case for failure to state a claim, and denied leave to replead which was affirmed on appeal. The reviewing court agreed that the unsophisticated consumer would not be misled or confused by the letter. It noted that the FDCPA does not say a debt collector must put the validation notice on the first page of a letter. Nor does it say the first page of must point to the validation notice if it is not on the first page. Nor does it say a debt collector must tell a consumer the validation notice is important. Nor does it say a debt collector may not tell a consumer that other information is important. Rather, the statute simply forbids a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

The debt collector did not overshadow the validation notice by putting it on page two when page one refers to “important information” on its back. To the contrary, the validation notice appeared in clear, readily readable font near the top of page two. “Even an unsophisticated consumer—maybe especially one—can be expected to read page two of a two-page collection letter.” The Court also noted that the reverse of page one begins by saying it is not a complete list of all rights consumers might have under federal law. And the top of page two immediately presents the required validation notice, “which looks for all the world like a continuation of the letter because it is a continuation of the letter.” As the district court put it, “a consumer who reads the front and back of the first page of a short letter and then completely disregards the second page has not read the letter with care.”

Nor did the debt collector imply the validation notice was unimportant by calling other information important. The reference on the front of page one to its back is not a reference to “the only important information,” but is explicitly a reference to “additional important information.” And the back of page one leads with the warning that it is not a complete list of rights. Besides, the FDCPA does not require a debt collector to tell the consumer the validation notice is important.


  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

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