Erin Johnson v. Enhanced Recovery Company, LLC ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 19‐1210 & 19‐1334
ERIN JOHNSON,
Plaintiff‐Appellant, Cross‐Appellee,
v.
ENHANCED RECOVERY COMPANY,
LLC,
Defendant‐Appellee, Cross‐Appellant.
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 16 CV 330 — Philip P. Simon, Judge.
ARGUED SEPTEMBER 13, 2019 — DECIDED JUNE 9, 2020
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Erin Johnson filed this putative class
action against Enhanced Recovery Company, LLC (ERC),
alleging that it sent her a misleading collection letter in
violation of the Fair Debt Collection Practices Act (“FDCPA”).
15 U.S.C. §§ 1692‐1692p. ERC moved to dismiss Johnson’s
2 Nos. 19‐1210 & 19‐1334
claim on the grounds that no reasonable consumer could have
been misled by its letter. The district court denied ERC’s
motion and certified a class composed of all individuals in
Indiana who had received a collection letter like Johnson’s
from ERC between July 2016 and August 2017. See Fed. R. Civ.
P. 23(a) and (b)(3) (describing class certification requirements).
On the parties’ cross motions for summary judgment, the
district court entered judgment for ERC. Johnson appeals, and
ERC cross appeals from the denial of its motion to dismiss
Johnson’s complaint under Federal Rule of Civil Procedure
12(b)(6). Because Johnson failed to present any evidence
beyond her own opinion that ERC’s letter was misleading, we
affirm the judgment of the district court.
I.
The facts are straightforward. ERC is a third‐party debt
collector that attempted to collect on a delinquent debt of
Johnson’s arising from a broken contract for a cell phone with
Sprint wireless. In early March 2016, ERC acquired Johnson’s
debt from Sprint and began its collection efforts. Such efforts
are highly regulated by the FDCPA, which was enacted to
eliminate the use of abusive debt collection practices against
vulnerable debtors. 15 U.S.C. § 1692(e) (congressional findings
and statement of purpose). To that end, § 1692e broadly
prohibits debt collectors from using “any false, deceptive, or
misleading representation” in connection with the collection of
a debt.
In total, ERC sent Johnson three dunning letters dated,
respectively, March 8, April 21, and June 6, 2016. Johnson,
whose version of events we accept as true at this stage of the
Nos. 19‐1210 & 19‐1334 3
proceedings, denies having ever seen the March 8 letter. It
stated in relevant part:
COLLECTION NOTICE
ERIN JOHNSON
Our records indicate that your balance with Sprint
remains unpaid; therefore your account has been
placed with ERC for collection efforts.
Upon receipt and clearance of $1,094.72, your
account will be closed and collection efforts will
cease.
This letter serves as notification that your delinquent
account may be reported to the national credit
bureaus.
Unless you dispute the validity of the debt, or any
portion thereof, within thirty (30) days after your
receipt of this notice, the debt will be assumed to be
valid by us.
ERC mailed Johnson the second dunning letter, which
forms the basis of her lawsuit, forty‐four days later, on April
21, 2016. The top right corner of the letter contains the date and
a heading identical to one appearing in the March letter. That
heading identifies the creditor as Sprint, lists an account
number, and says in bold, capital letters, “YOU HAVE OP‐
TIONS.” As relevant to Johnson’s claim, the remainder reads
as follows:
Our records indicate that your balance with Sprint
remains unpaid; therefore your account has been
4 Nos. 19‐1210 & 19‐1334
placed with ERC for collection efforts. We are
willing to reduce your outstanding balance by
offering discounted options.
Option 1: Pay the settlement of $875.78, please remit
by May 26, 2016.
Option 2: Pay the settlement of $930.51, payable in 2
monthly payments of $465.26.
Option 3: Pay the settlement of $985.25, payable in 3
monthly payments of $328.42.
We are not obligated to renew this offer.
This letter serves as notification that your delinquent
account may be reported to the national credit
bureaus.
Payment of the offered settlement amount will stop
collection activity on this matter. We will inform
Sprint once the payment(s) is/are posted. Payment of
the settlement amount will not restore your service
with Sprint. If you wish to establish service with
Sprint at a future date, the remaining balance must
be paid in full prior to the consideration of any
future services being granted.
Unless you dispute the validity of the debt, or any
portion thereof, within thirty (30) days after your
receipt of this notice, the debt will be assumed to be
valid by us.
ERC reported Johnson’s delinquent Sprint account to the
national credit bureaus on April 24, 2016. It sent the third and
Nos. 19‐1210 & 19‐1334 5
final dunning letter to Johnson on June 6, 2016. With the
exception of the specifics of the three settlement options, which
were for further reduced amounts and specified a date in July
as opposed to May to remit payment, the June letter was
identical to the April letter.
In July that same year, Johnson filed this suit, maintaining
that the April letter was misleading in violation of § 1692e. She
focused primarily on the sentence, “This letter serves as
notification that your delinquent account may be reported to
the national credit bureaus.” According to Johnson, the
statement that her debt may be reported to credit bureaus was
deceptive. As Johnson read the letter, the phrase “may be
reported” implied future reporting, and by the time she
received the letter her debt had already been reported. She also
singled out the sentence near the end of the letter stating,
“Payment of the offered settlement amount will stop collection
activity on this matter.” Johnson claimed this statement
amounted to a promise by ERC that if she took advantage of
the first settlement offer and paid by May 26, then ERC would
not report her debt to the national credit bureaus.
As noted above, the district court declined to dismiss
Johnson’s claim for failure to state a claim under Fed. R. Civ.
P. 12(b)(6), noting that whether a communication is confusing
or misleading under § 1692e is ordinarily a question of fact.
Because the district court believed the allegedly confusing
interpretation of the letter proposed by Johnson was at least
“plausible,” it concluded that dismissal would be premature.
After class certification and on the parties’ cross‐motions for
summary judgment, however, the court granted summary
judgment to ERC based on Johnson’s failure to adduce
6 Nos. 19‐1210 & 19‐1334
necessary evidence that the language in question would be
confusing or misleading to a significant fraction of the popula‐
tion. Johnson appeals, arguing both that summary judgment
for ERC was inappropriate, and that she is entitled to summary
judgment. ERC cross‐appeals, claiming that the district court
erred by denying its motion at the outset to dismiss Johnson’s
claim for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
II.
We begin with ERC’s contention that the district court
should have dismissed Johnson’s complaint for failure to state
a claim for relief under Rule 12(b)(6).1 In reviewing a motion to
dismiss, we accept as true all well‐pleaded factual allegations
and draw all reasonable inferences in favor of the plaintiff. See,
e.g., Heredia v. Capital Mgmnt. Servs., L.P., 942 F.3d 811, 814 (7th
Cir. 2019). Moreover, complaints alleging misleading commu‐
nications under § 1692e are rarely subject to dismissal for
failure to state a claim because in this circuit, whether a
communication is false, deceptive, or misleading under the
FDCPA is a question of fact. See Evory v. RJM Acquisitions
Funding, L.L.C., 505 F.3d 769, 776 (7th Cir. 2007) (“[W]e treat
issues of deception as ones of fact rather than of law.”);
1
ERC’s cross‐appeal is premised on the argument that the language in its
collection letter does not violate the FDCPA as a matter of law. Thus, it
argues that granting its motion would “enlarge” the district court’s
judgment and spare ERC from defending against future FDCPA claims in
other jurisdictions. Claiming that a judgment in its favor would still have
no impact beyond herself and the certified class members, Johnson disputes
that ERC is pursuing a proper cross‐appeal. Because we affirm the district
court’s conclusion that Johnson’s complaint was not subject to dismissal
under Rule 12(b)(6), it is unnecessary to settle this controversy.
Nos. 19‐1210 & 19‐1334 7
Zemeckis v. Glob. Credit & Collection Corp., 679 F.3d 632, 636 (7th
Cir. 2012) (“As a general matter, we view the confusing nature
of a dunning letter as a question of fact that, if well‐pleaded,
avoids dismissal on a Rule 12(b)(6) motion.”) (internal citation
omitted); McMillan v. Collection Prof’ls Inc., 455 F.3d 754, 760
(7th Cir. 2006) (noting that inquiries under § 1692e “are
necessarily fact bound” and that in “most instances” applica‐
tion of Rule 12(b)(6) “will require that the plaintiff be given an
opportunity to demonstrate that his allegations are supported
by a factual basis responsive to the statutory standard”).
Despite this general rule, a claim under § 1692e may be
dismissed when it is clear from the face of the communication
that no reasonable person, however unsophisticated, would be
deceived by the allegedly false or misleading statement. See
Heredia, 942 F.3d at 814; Taylor v. Cavalry Inv., L.L.C., 365 F.3d
572, 574–75 (7th Cir. 2004) (“If it is apparent from a reading of
the letter that not even ‘a significant fraction of the population
‘ would be misled by it… the court should reject it without
requiring evidence beyond the letter itself.”).
ERC offers two arguments to support its claim that John‐
son’s proposed interpretation of its April letter is so implausi‐
ble as to be subject to dismissal. First, it insists that the state‐
ment “your delinquent account may be reported to the national
credit bureaus” could not be misleading because it tracks
certain safe harbor model language in Regulation V, which
governs the Fair Credit Reporting Act. See 12 C.F.R. Part 1022,
App. B, Model Notices of Furnishing Negative Information,
Model Notice B‐1; see also Evory, 505 F.3d at 776 (noting that
dismissal of a § 1692e claim on the pleadings may be appropri‐
ate when defendant used statutory language or our safe‐harbor
8 Nos. 19‐1210 & 19‐1334
language). Johnson, however, notes that the allegedly confus‐
ing aspect of the phrase “may be reported” stemmed from the
fact that her debt had already been reported by the time she
received the letter. Thus, she points out, assuming the Fair
Credit Reporting Act safe harbor language is even relevant2,
ERC should have used the proposed language in Model Notice
B‐2, which states in relevant part, “We have told a credit bureau
about a late payment, missed payment, or other default on
your account. 12 C.F.R. Part 1022, App. B, Model Notice B‐2
(emphasis added). In light of the question whether the Fair
Credit Reporting Act applies at all to ERC and if so, whether it
should have used Model Notice B‐1 (“We may report… ) or B‐2
(“We have told a credit bureau…”), ERC’s use of the model
language does not eliminate the factual question of whether
Johnson stated a claim under the FDCPA.
Second, ERC dismisses as “bizarre” Johnson’s proposed
interpretation of the sentence, “Payment of the offered settle‐
ment amount will stop collection activity on this matter.” As
ERC describes it, Johnson is arguing that the phrase “stop
collection activity” amounts to a misleading promise to
“prevent any collection activity,” an interpretation ERC deems
obviously unsupportable because the letter itself represents
collection activity.
But ERC misstates Johnson’s claim. Johnson never claims
the letter falsely suggests that she could prevent any collection
2
The quoted safe harbor language applies to “financial institutions,”
defined as banks, savings and loan associations, credit bureaus, or other
holders of transaction accounts, none of which would obviously apply to
ERC. See 15 U.S.C. § 1681a(t) (defining the term “financial institution”).
Nos. 19‐1210 & 19‐1334 9
activity by paying the settlement offer. She argues that by
including the date of May 26, 2016 with the first listed settle‐
ment offer ($875.78), and later stating that the delinquent
account “may be reported” to credit bureaus, followed by the
assurance that “[p]ayment of the offered settlement amount
will stop collection activity on this matter,” the April letter
gave the impression that credit reporting could be avoided by
accepting the first listed settlement offer and paying by May
26th. Whether a significant fraction of debtors would be misled
as Johnson describes is questionable, but it is not so implausi‐
ble as to land her case in the narrow class of cases in which the
answer to the factual question of whether the communication
is deceptive can be resolved from the face of the pleadings. See
Heredia, 942 F.3d at 814 (“‘[I]n determining whether a state‐
ment is confusing or misleading, a district court must tread
carefully because district judges are not good proxies for the
‘unsophisticated consumer’ whose interest the statute protects.
Accordingly, Rule 12(b)(6) dismissal on that issue is appropri‐
ate only if there is no set of facts consistent with the pleadings
under which the plaintiffs could obtain relief.’” (quoting
Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 812 (7th
Cir. 2016))).
We thus turn to Johnson’s argument that summary judg‐
ment for ERC was improper and that the misleading nature of
the April collection letter entitles her to summary judgment.
We review the district court’s summary judgment ruling de
novo, construing all facts and reasonable inferences in favor of
the non‐moving party. Richards v. PAR, Inc., 954 F.3d 965, 967
(7th Cir. 2020). Summary judgment is appropriate when there
10 Nos. 19‐1210 & 19‐1334
are no disputed material facts and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a).
As described above, § 1692e of the FDCPA prohibits debt
collectors from using any “false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. Although § 1692e also provides
a non‐exhaustive list of examples of proscribed conduct,
Johnson’s claim turns entirely on what she characterizes as the
deceptive nature of the April letter.
In determining whether a communication is “false, decep‐
tive, or misleading,” we evaluate the disputed language from
the objective standpoint of an “unsophisticated debtor.” See
Heredia, 942 F.3d at 815. Our hypothetical unsophisticated
debtor is “uninformed, naive,” and “trusting,” but does
possess “rudimentary knowledge about the financial world,”
and “is wise enough to read collection notices with added
care.” Boucher v. Fin. System of Green Bay, Inc., 880 F.3d 362, 366
(7th Cir. 2018) (quoting Williams v. OSI Educ. Servs., Inc., 505
F.3d 675, 678 (7th Cir. 2007) (citations and internal quotations
omitted)). She is also “capable of making basic logical deduc‐
tions and inferences” and possesses “reasonable intelligence.”
Heredia, 942 F.3d at 815 (citation and internal quotations
omitted). Though “‘our unwary debtor may tend to read
collection letters literally, he does not interpret them in a
bizarre or idiosyncratic fashion.’” Id. (quoting Pettit v. Retrieval
Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir.
2000)). In short, “[t]he Act protects the unsophisticated debtor,
but not the irrational one.” White v. Goodman, 200 F.3d 1016,
1020 (7th Cir. 2000). Accordingly, it is not enough for a plaintiff
to simply assert confusion; she must demonstrate that the
Nos. 19‐1210 & 19‐1334 11
“language of the letters unacceptably increases the level of
confusion.” Durkin v. Equifax, 406 F.3d 410, 415 (7th Cir. 2005)
(quoting Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060
(7th Cir. 1999)) (internal quotations omitted).
We apply this standard by asking whether the disputed
language “could well confuse a substantial number of recipi‐
ents.” Pantoja v. Portfolio Recovery Assoc., LLC, 852 F.3d 679, 686
(7th Cir. 2017) (citation and internal quotation omitted). To
answer this question, we have categorized §1692e cases into
three groups. The first category consists of cases where the
challenged language is obviously not misleading and no
extrinsic evidence is required to demonstrate that a reasonable
unsophisticated consumer would not be misled. Id. at 686–87.
The second category includes those cases where the debt
collection language is not deceptive or misleading on its face,
but could be construed so as to be confusing or misleading to
the unsophisticated consumer. We have held that in these
cases, a plaintiff cannot prevail without producing extrinsic
evidence, such as consumer surveys, tending to show that
unsophisticated consumers are in fact confused or misled by
the challenged language. Id. The final category of cases
involves language that is plainly false, deceptive, or mislead‐
ing, and therefore requires no additional evidence for the
plaintiff to succeed on her claim. Id.; see also Janetos v. Fulton
Friedman & Gullace, LLP, 825 F.3d 317, 322–23 (7th Cir. 2016)
(describing three categories of cases applicable to claims under
§ 1692e based on its general prohibitions against false, decep‐
tive, or misleading statements).
Johnson insists that no additional evidence is required
beyond her own opinion that a reasonable but unsophisticated
12 Nos. 19‐1210 & 19‐1334
consumer would interpret the April 21 letter as a “threat to
engage in credit reporting” unless the payment was made by
May 26, 2016, the date listed with the first settlement offer. Her
interpretation turns on what she alleges is the misleading
message conveyed by the statement “[t]his letter serves as
notification that your delinquent account may be reported to
the national credit bureaus” followed in the next paragraph by
the statement “[p]ayment of the offered settlement amount will
stop collection activity on this matter.” First, Johnson insists
that the phrase “may be reported to the national credit bu‐
reaus” conveys a future possibility that her debt could be
reported, when in fact by the time she received the letter or
shortly thereafter it had already been reported. The problem
with this interpretation, which the district court recognized, is
that although the word “may” is certainly capable of referring
to future events, that is not its only possible usage. According
to ERC, the advisement that the debt “may be reported” is
intended solely to make the debtor aware that ERC is capable of
reporting the outstanding debt.
Both proposed interpretations are consistent with com‐
monly understood meanings of “may.” The first dictionary
definition of “may” offers two possibilities “a – used to
indicate a possibility or probability” or “b: have permission to
… – used nearly interchangeably with can.” See Merriam‐
Webster Dictionary, “Definition of may,” https://www.merriam‐
webster. com/dictionary/may (emphasis in original) (last
visited May 27, 2020). If used to mean has permission to, the
letter’s “notification” that the debtor’s delinquent account
“may be reported” simply apprises the recipient that ERC has
permission to report the delinquent debt. Whether that report‐
Nos. 19‐1210 & 19‐1334 13
ing has occurred already, has yet to occur, or never occurs is
irrelevant to the truth or falsity of the statement. Instead, the
notification is simply a statement of fact. See Taylor, 365 F.3d at
575 (rejecting claim of confusion arising from a “clear state‐
ment of a truism”). And the fact that a statement explaining
ERC’s power to report the delinquent debt is followed by
another statement (in a new paragraph) explaining that paying
the settlement amount will stop collection activity but not
restore Johnson’s Sprint service is certainly not on its face a
promise or guarantee that if the offered settlement is paid, then
the delinquent debt will not be reported. Nor is there anything
in the fact that the first—and lowest—listed settlement offer of
$875.78 includes a “remit by” date of May 26, 2016 that
transforms the later freestanding statement that ERC may
report the delinquent debt into a guarantee that reporting can
be avoided by remitting payment before May 26th. Accord‐
ingly, Johnson’s claim does not fall into the third category of
cases involving plainly false, deceptive, or misleading lan‐
guage. Nor, as discussed above, is the challenged language of
the letter so “plainly and clearly not misleading” that her claim
belongs in the first category. Janetos, 825 F.3d at 322–23.
Johnson’s claim thus belongs in the second category, for
which she bears the burden of producing evidence of confu‐
sion (beyond her own) using an objective measure such as “a
carefully designed and conducted consumer survey.” Sims v.
GC Servs. L.P., 445 F.3d 959, 963 (7th Cir. 2006) (internal
quotations and citation omitted). As the district court recog‐
nized, her failure to do so dooms her claim.
Rather than confront this fatal flaw, Johnson insists that no
further evidence is required when a communication has two
14 Nos. 19‐1210 & 19‐1334
possible readings, one of which is misleading. To support this
position, she cites cases from four other circuits. None apply
here. Tellingly, each of the circuits cited by Johnson uses the
“least sophisticated consumer” standard that we have specifi‐
cally rejected to assess whether a communication is confusing
under the FDCPA. See Pettit, 211 F.3d at 1060 (“[W]e have
rejected the ‘least sophisticated debtor’ standard used by some
other circuits because we don’t believe that the unsophisticated
debtor standard should be tied to ‘the very last rung on the
sophistication ladder.’”) (quoting Gammon, 27 F.3d at 1257).
Moreover, none have any bearing on Johnson’s failure to
provide any outside evidence as to the likelihood that a
hypothetical unsophisticated debtor (or even the least sophisti‐
cated debtor) would in fact be confused by the language in
ERC’s letter.
Johnson next maintains that she need not present extrinsic
evidence of confusion because ambiguity itself is evidence of
confusion. Johnson suggests it is irrelevant whether her claim
is analyzed under the “least sophisticated” consumer standard
or under our “unsophisticated consumer” standard because
under what she refers to as the “ambiguity principle,” she need
only demonstrate the letter could plausibly be read in two
possible ways, one of which is deceptive. Johnson’s framing of
the argument, however, reveals its fundamental flaw: although
such a showing may be sufficient to withstand dismissal for
failure to state a claim, at this stage of the proceedings, Johnson
must do more than simply propose a potentially misleading
interpretation of ERC’s letter. Indeed, that is why the standard
used does matter: “because we have rejected the ‘least sophisti‐
cated consumer’ standard, a letter must be confusing to ‘a
Nos. 19‐1210 & 19‐1334 15
significant fraction of the population.’” Lox v. CDA, Ltd., 689
F.3d 818, 821 (7th Cir. 2012) (quoting Taylor, 365 F.3d at 574).
But Johnson has failed completely to demonstrate that a
significant—indeed any (beyond herself)—fraction of the
population would read the April letter as promising to forgo
credit bureau reporting if Johnson paid her debt by May 26th.
See Pettit, 211 F.3d at 1061 (noting that debtor could not prevail
on FDCPA claim “because at the summary judgment stage of
a case she must do more than merely speculate about how a
naive debtor would interpret the letter”).
By citing bits and pieces of inapposite cases3, Johnson
sidesteps entirely the requirement, applicable here, that the
plaintiff bears the burden of demonstrating that language not
misleading on its face yet that could plausibly be read in a
misleading or deceptive manner would in fact mislead a
“significant fraction” of the population. As described above,
Johnson’s complaint proposes an interpretation of ERC’s letter
that could be confusing to an unsophisticated debtor. But
without evidence of how such a debtor would actually read the
3
For example, Johnson quotes Pantoja, 852 F.3d at 687, for the principle that
“[w]here the FDCPA requires clarity … ambiguity itself can prove a
violation.” Although she relies heavily on Pantoja, the issue there involved
a dunning letter attempting to collect a time‐barred debt, and we noted that
external evidence of confusion was unnecessary because the letter
exemplified “careful and deliberate ambiguity … chosen to obscure from
the debtor that the law prohibits the collector from suing to collect his debt
or even threatening to do so.” Id. at 687. There is no evidence here of similar
“deliberate ambiguity” or attempts to obfuscate the debtor’s rights in ERC’s
letter. Thus Pantoja, like other cases cited by Johnson, does not support her
claim that she needed not present evidence as to whether an unsophisti‐
cated debtor would be confused by the April letter.
16 Nos. 19‐1210 & 19‐1334
letter, Johnson cannot make the required showing that the
language of the April letter “unacceptably increases the level
of confusion.” Johnson, 169 F.3d at 1060. In order to arrive at the
allegedly misleading interpretation Johnson proposes, the
reader must first assume the “remit by” date of May 26 listed
at the beginning of the letter with two other settlement offers
is linked to the statement, appearing much later in the letter,
that the debt “may” be reported to credit bureaus. Next, the
phrase “may be reported” must be defined solely as a state‐
ment of prospective possibilities as opposed to the equally likely
usage indicating ability or authority to report the debt. These
proposed interpretations must then be combined with the
statement in yet another paragraph informing the debtor that
payment of the settlement offer “will stop collection activity”
(but not restore service with Sprint), to yield the allegedly
misleading interpretation that if the debtor pays the first
offered settlement by May 26, then ERC will not report the
delinquent debt to the national credit bureaus. Because the
language in the April letter, standing alone, makes no such
promise, Johnson bore the burden of producing evidence
beyond her own say so demonstrating the likelihood that an
unsophisticated debtor would conclude as much. It is not
enough that Johnson reached such a conclusion; “under the
FDCPA, confusion is not in the eyes of the beholder.” Pettit,
211 F.3d at 1062. Her belief that the letter offered to forgo
reporting her debt if she paid by May 26th (or, inversely
threatened to report the debt unless she paid by May 26th) fails
to create a genuine issue as to whether a significant fraction of
the population would reach such a conclusion after reading the
April letter. See id. at 1061. The FDCPA is “not violated by a
Nos. 19‐1210 & 19‐1334 17
dunning letter that is susceptible [to] an ingenious misreading,
for then every dunning letter would violate it. [It] protects the
unsophisticated debtor, but not the irrational one.” White v.
Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000). Here Johnson
presented one such “ingenious” reading of ERC’s letter and
then failed to prove by any objective measure that a significant
fraction of its recipients were misled. See Sims, 445 F.3d at 963.
Our case law makes clear that “mere speculation” by the
plaintiff that a collection letter is misleading is insufficient to
survive a debt collector’s motion for summary judgment. See
Durkin, 406 F.3d at 419. In denying ERC’s motion to dismiss
Johnson’s complaint, the district court observed that “as the
case proceeds, the parties may (both might, and are permitted
to) present evidence about how unsophisticated consumers
would interpret” the allegedly misleading statements in ERC’s
April letter. Because Johnson chose instead to rely solely on her
“speculation” to support her claim, summary judgment for
ERC was appropriate.
III.
For the foregoing reasons, we AFFIRM the district court’s
judgment in all respects.