Sims, Charles O. v. GC Services LP ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1740
CHARLES O. SIMS AND SANDRA ADAMS,
Plaintiffs-Appellants,
v.
GC SERVICES L.P., DLS ENTERPRISES, INCORPORATED,
AND GC FINANCIAL CORPORATION,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 4077—Michael M. Mihm, Judge.
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ARGUED DECEMBER 1, 2005—DECIDED APRIL 26, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. Plaintiffs Charles Sims and
Sandra Adams brought suit under the Fair Debt Collec-
tion Practices Act, 15 U.S.C. §§ 1692 et seq. (1998)
(“FDCPA”). They contend that the defendants intention-
ally overshadowed the required statutory notice to make it
unnecessarily difficult to read and that the overshadowing
and its effect are questions of fact for the jury. The district
court granted defendants’ motion for summary judgment.
We affirm.
2 No. 05-1740
I. Background
Plaintiffs Charles Sims and Sandra Adams each re-
ceived a dunning letter from defendant GC Services. The
front side of each letter advised plaintiffs of the amount
of debt owed and asked them to promptly satisfy their
debts. The letters indicated that the collection efforts would
continue until successful. The collection demand letter is
printed in black ink on a white background. The text is left-
justified and printed in standard font. At the bottom of the
front page of each letter, in bold, red, capital lettering, is
the following warning: “NOTICE: SEE REVERSE SIDE FOR
IMPORTANT CONSUMER INFORMATION.”
The statutory notice, typically called a validation notice,
is required by 15 U.S.C. § 1692g and was printed on the
reverse side of the demand letters. The notice advises
consumers of their legal rights under FDCPA. In language
mirroring 15 U.S.C. § 1692g, the notice explained the
collection process and what consumers should do if they
chose to dispute the debt. The notice was in gray ink, all
capital lettering, and was set against the same white
background used for the front of the letter. In the letter
sent to Mr. Sims, the validation notice was written in
both English and Spanish. In the letter sent to Ms. Adams,
the validation notice was written in English, Spanish, and
French.
Sims and Adams filed this suit against GC Services, L.P.,
DLS Enterprises, Incorporated, and GC Financial Corpora-
tion (collectively, “defendants”), alleging that the collection
letters they received violated the FDCPA. Plaintiffs claim
that the formatting and design of the reverse side of defen-
dants’ collection letters rendered the validation notice
difficult for an unsophisticated consumer, or one with poor
eyesight, to notice or comprehend. Specifically, plaintiffs
claim that the defendants intentionally employed several
techniques to make the validation notice harder to read: a
No. 05-1740 3
light gray color for the font, all capital lettering, full
justification, narrow spacing between the lines, and multi-
ple languages. Plaintiffs further contend that the difficult
to read font and formatting characteristics are exacerbated
by misleading language on the front of the letters. The front
side of the letters indicate that defendants will continue
collection efforts until the matter is resolved, and such
language, plaintiffs argue, contradicts the validation notice.
Plaintiffs submitted a report supporting their position.
The report, prepared by Dr. Timothy Shanahan, presented
a readability and design analysis of six collection letters.
Notably, the letters sent to Sims and Adams were not
formally analyzed by Dr. Shanahan. While Dr. Shanahan
examined 36 additional letters, including the letters sent to
Mr. Sims and Ms. Adams, he did not conduct a readability
and design analysis on these additional letters. In the
district court, defendants moved to strike Dr. Shanahan’s
report as irrelevant and inadmissable. The defendants
moved for summary judgment, arguing that the collection
letters were, on their face, not difficult to read. Plaintiffs
moved, pursuant to Federal Rule of Civil Procedure 56(f),
to continue briefing on the defendants’ summary judgment
motion so that plaintiffs could conduct additional discovery
as to the defendants’ intent in drafting the letters. In the
affidavit submitted in support of plaintiffs’ Rule 56(f)
motion, plaintiffs’ counsel stated that discovery was needed
relating to formal or informal testing performed on the
letters, the persons involved in drafting the letters, the
process involved in creating the letters, and materials or
complaints related to FDCPA compliance. Plaintiffs did not
seek additional time to conduct consumer surveys or to
obtain additional expert testimony. Defendants responded
that the additional discovery was not relevant to the issues
before the court on summary judgement; the district court
agreed and denied plaintiffs’ request.
4 No. 05-1740
In opposition to defendants’ motion for summary judg-
ment, plaintiffs argued that genuine issues of material
fact remained as to whether the § 1692g notice was over-
shadowed or confusing and whether defendants intention-
ally crafted the letters to obscure the substance of the
notice. Further, they urged that their discovery disputes
with defendants raised a presumption of defendants’ intent
to craft dunning letters that obscure the substance of the
required validation notice.
The district court granted defendants’ motion for sum-
mary judgment and denied the plaintiffs’ requests to
supplement its response to the summary judgment mo-
tion. Judge Mihm reasoned that the plaintiffs’ supplemental
motions, which included documents from other litigation
against defendants and were directed towards defendants’
intent, were wholly unrelated to the Court’s narrow task of
determining whether the Sims and Adams dunning letters
violated the FDCPA as a matter of law. Plaintiffs timely
appealed.
II. Analysis
We review the district court’s grant of summary judgment
de novo. Durkin v. Equifax Check Services, Inc., 406 F.3d
410, 414 (7th Cir. 2005).
The FDCPA requires debt collectors to send consumers a
written validation notice containing certain information
within five days of the initial communication. Olson v. Risk
Management Alternatives, Inc., 366 F.3d 509, 511 (7th Cir.
2004). The notice must include the amount of the debt, 15
U.S.C. § 1692g(a)(1), the name of the creditor, 15
U.S.C. § 1692g(a)(2), and a statement explaining that
unless the debtor, within 30 days of receiving the notice,
“disputes the validity of the debt . . . the debt will be
assumed to be valid by the debt collector” 15
U.S.C. § 1692g(a)(3). The notice must also disclose that,
No. 05-1740 5
if the debt collector receives written request from the debtor
within 30 days of receiving the notice, it will provide
verification of the debt, 15 U.S.C. § 1692g(a)(4), and will
provide the name and address of the original creditor if it
differs from the current creditor, 15 U.S.C. § 1692g(a)(5).
Finally, if the debtor notifies the debt collector within the
30-day period that the debt is disputed or requests the
name and address of the original creditor, then the debt
collector “shall cease collection of the debt” until the debt
collector obtains verification of the debt or the name and
address of the original creditor and the requested informa-
tion is mailed to the debtor. 15 U.S.C. § 1692g(b).
The validation notice required by the FDCPA must
be presented in a nonconfusing manner. Bartlett v. Heibl,
128 F.3d 497, 500 (7th Cir. 1997). In reviewing the col-
lection letters to determine whether they violate the
FDCPA, we view the letters from the “standpoint of the so-
called unsophisticated consumer or debtor.” Durkin, 406
F.3d at 414. The unsophisticated debtor is regarded as
“uninformed, naive, or trusting,” but nonetheless is consid-
ered to have a “rudimentary knowledge about the financial
world and is capable of making basic logical deduction[s]
and inferences.” Fields v. Wilber Law Firm, P.C., 383 F.3d
562, 564 (7th Cir. 2004) (internal quotations omitted). The
unsophisticated debtor standard, however, is an objective
one. Durkin, 406 F.3d at 414-15. As a result, a plaintiff’s
mere claim of confusion is not enough to withstand a motion
for summary judgment. Rather, a plaintiff must demon-
strate that the letter’s language unacceptably increases the
level of confusion. Id. Given this standard, “a plaintiff’s
anecdotal proclamations of being confused will not suffice:
a collection letter cannot be confusing as a matter of law or
fact ‘unless a significant fraction of the population would be
similarly misled.’ ” Id. quoting Pettit v. Retrieval Masters
Creditors Bureau, Inc., 211 F.3d 1057, 1060 (2000).
Plaintiffs contend that defendants violated the FDCPA by
making the statutory notice less prominent and more
6 No. 05-1740
difficult to read than the payment demand portion of the
letter, a technique they refer to as “visual overshadowing.”
They argue that confusion caused by visual overshadow-
ing is a question of fact for a jury.
In reviewing a defendant’s motion for summary judgment
in an FDCPA case, this Court will find a triable issue of fact
if the collection letter is confusing or unclear on its face.
Chuway v. National Action Financial Services, Inc., 362
F.3d 944, 948 (7th Cir. 2004). The burden of proof is on the
plaintiffs to present evidence of confusion (beyond their
own) in the form of an objective measure, like “a carefully
designed and conducted consumer survey.” Id. Mere
speculation that the unsophisticated debtor could
be confused by a dunning letter is not enough for an FDCPA
plaintiff to survive a summary judgment motion. Durkin,
406 F.3d at 414-15. Where it is apparent that a collection
letter would not confuse a significant fraction of the popula-
tion, summary judgment should be granted in favor of the
defendant unless the plaintiff has presented “objective
evidence of confusion.” Taylor v. Cavalry Investment, LLC,
365 F.3d 572, 575 (7th Cir. 2004). We review the district
court’s discovery rulings for abuse of discretion. Davis, 396
F.3d at 885.
We disagree with plaintiffs that the visual overshadowing
creates an issue of material fact for trial. First, the evidence
that plaintiffs offer to show that the letter confuses or
overshadows the validation notice consists of a report that
analyzed six letters. Significantly, plaintiffs’ letters were
not analyzed in the report. Dr. Shanahan’s analysis of the
text design and readability of dunning letters admittedly
similar to the letters at issue here does not by itself create
an issue of material fact that survives summary judgment.
As we have noted in the past, we welcome objective evi-
dence that can be helpful in determining whether a dunning
letter violates the FDCPA, such as surveys that attempt to
measure the level of consumer understanding, similar to
No. 05-1740 7
trademark cases. See Johnson v. Revenue Management
Corporation, 169 F.3d 1057, 1060-61 (7th Cir. 1999) (hold-
ing that plaintiffs are entitled to relief if they can demon-
strate that unsophisticated consumers misunderstand their
rights because the dunning letters are sufficiently confus-
ing).
In this case, plaintiffs rely on a readability and design
analysis of a dunning letter’s text to prove that the letters
are confusing or visually overshadowed. They did not
offer objective evidence in the form of consumer surveys.
Further, plaintiffs’ requests for additional discovery
were not aimed at ascertaining consumer confusion but
rather were focused on defendants’ intent in drafting the
letters.
Plaintiffs argue that defendants’ violations were “inten-
tional,” in that they chose all capital lettering and low-
leading and light gray font for the validation notice. But
intent is not an element of an FDCPA violation. See Gear-
ing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th Cir.
2000) (“Section 1692e applies even when a false representa-
tion is unintentional”); Russell v. Equifax A.R.S., 74 F.3d
30, 33-34 (2d Cir. 1996). If debt collectors go to great
lengths to produce confusing letters and attempt to deceive
the recipients, their intent would not matter if the letters
on their face contained the required notifications and would
not confuse the unsophisticated consumer. Conversely, debt
collectors might make every effort to make the letters clear
and not confusing, yet if the letters would confuse the
unsophisticated consumer and violate the statute, debt
collectors would be held liable. In short, intent plays no role
in determining whether a particular letter violates the
FDCPA.
Plaintiffs repeatedly rely on a passage from Bartlett v.
Heibl that states, “the required notice might be ‘overshad-
owed’ just because it was in smaller or fainter print than
8 No. 05-1740
the demand for payment.” Bartlett, 128 F.3d at 500, (citing
United States v. National Financial Services, Inc., 98
F.3d 131, 139 (4th Cir. 1996)). This reliance ignores the
bright, bold, red notice on the front of the letter advising
the plaintiffs and other debtors that they should “SEE
REVERSE SIDE FOR IMPORTANT CONSUMER INFORMATION.”
After reading that notice, even unsophisticated consumers
would turn the letter over to see the information on the
back, which answers the concern raised in Bartlett.
Our cases encourage collection agencies to make the
validation notice as easy to read as possible. Defendants
emphasized on the front of the letter in prominent, red,
bold, capital lettering that important consumer information
was listed on the back. Though the validation notice text on
the back is more difficult to read than the text on the front,
it is adequately readable and noticeable when combined
with the attention called to it on the front of the letter. If
the language itself is confusing, defendants are not to
blame. These wording complaints should be addressed to
Congress; the validation notice tracks the statutory lan-
guage almost verbatim. The district court properly con-
cluded as a matter of law that the letter on its face did not
violate the FDCPA.
Plaintiffs next argue that the dunning letters’ demands
contradicted or verbally overshadowed the validation notice.
See Bartlett, 128 F.3d at 500 (explaining how a required
notice can be obscured or overshadowed similar to static or
cross-talk on a telephone conversation). Again, plaintiffs
rely heavily on Bartlett, claiming that there are inherent
contradictions between the dunning letters and the valida-
tion notice. While Bartlett informs our Court’s framework
for FDCPA violations and even provides an example of safe
dunning letter wording, the “overshadowing” that occurred
in Bartlett is readily distinguishable from what plaintiffs
present here. In Bartlett, the plaintiff’s claim was that the
dunning letter contradicted his rights under the FDCPA
No. 05-1740 9
because it told the debtor that if he did not pay within one
week he would be sued, which is a direct contradiction of
the validation notice that gives the debtor 30 days to
dispute the debt. Here, no rights are contradicted. The
statement that the collection agency would continue with
collection efforts until the matter is handled does not
obscure the debtor’s statutory entitlement to a 30-day
period in which to dispute the debt. See Olson, 366 F.3d at
512-13. In fact, we have held that such language “is in the
nature of puffing, in the sense of rhetoric designed to create
a mood rather than convey concrete information or misin-
formation . . .” Taylor, 365 F.3d at 575-76. Of course debt
collectors will continue with collection efforts until the debt
is paid since, after all, that is their business. But the
validation notice gives consumers a specific process to
follow in order to dispute the debt. Additionally, at the end
of defendants’ validation notice it states, “THE DEMANDS
FOR PAYMENT IN THIS LETTER DO NOT REDUCE
YOUR RIGHTS TO DISPUTE THIS DEBT, OR ANY
PORTION THEREOF, AND/OR TO REQUEST VERIFICA-
TION WITHIN THE THIRTY (30) DAY PERIOD AS SET
FORTH ABOVE.” The district court did not err in deciding
as a matter of law that the letter’s demands did not contra-
dict or verbally overshadow the statutory notice required
under the FDCPA.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
10 No. 05-1740
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-06