Recently, the United States Court of Appeals for the Third Circuit, rendered an opinion in the class action, Michelle Tatis vs. Allied Interstate, LLC: John Does 1-25, No. 16-4022, clarifying whether time-barred offers from creditors to settle old obligations violated the Fair Debt Collection Practice Act (“FDCPA”). On appeal, the 3rd Circuit reversed a decision by the United States District Court for the District Of New Jersey granting Defendant’s Motion To Dismiss suit. Plaintiff, Michelle Tatis, commenced a class action suit against Defendant, Allied Interstate, LLC, alleging that a collection letter sent by Allied offering to settle her time-barred debt violated the FDCPA’s prohibition against using “any false, deceptive, or misleading representations or means in connection with the collection of any debt.” See 15 U.S.C. § 1692e. Tatis had a ten year old debt of $1,289.86 owed to Bally Total Fitness which Allied sought to collect by sending a letter offering to settle the obligation for pennies on the dollar.
In the state of New Jersey, the statute of limitations to commence a debt collection action is six years. Pennsylvania has a four year statute of limitations to commence a debt collection action. What that means is that if the 6 years, or 4 years in Pennsylvania, has passed since a debtor defaulted on his/her obligation to pay his/her debt, a creditor cannot sue the debtor to recover the debt. It does not mean that a creditor cannot offer to settle and that a debtor cannot voluntarily agree to repay the debt. A debtor may voluntarily agree to repay the obligation for personal reasons or a desire to honor the obligation. However, there is no legal threat to the debtor after the statute of limitations has passed. Whether or not an offer to settle misrepresents the legal status of a time-barred obligation is the focus of the 3rd Circuit’s Opinion.
In Tatis, Allied sent a letter after the statute of limitations had run stating: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”
Tatis’ complaint alleged that Tatis interpreted the word “settlement” in the letter to mean that she had a “legal obligation” to pay the debt, and the least- sophisticated debtor would hold a similar belief. Tatis claimed that letter violated several prohibitions of the FDCPA including: §1692 e(2)(A), falsely representing the legal status of debt; §1692e(5), making false threats to take legal action that cannot be legally taken; and §1692e(10) using false representations and/or deceptive means to collect or attempt to collect a debt. Allied filed a Motion To Dismiss alleging that no threat to take legal action was made to Tatis by the settlement letter.
The U.S. District Court agree with Allied and held that an attempt to collect a time-barred does not violate the FDCPA unless it is accompanied a threat of legal action. District Court stated that the use of the word “settlement” in a letter did not constitute a threat of legal action. Finally, The U.S. District Court held that because under New Jersey law partial repayment would not revive the statute of limitations, the letter could not deceive or mislead a consumer into inadvertently reviving the debt.
The 3rd Circuit in reversing the District Court focused on the remedial nature of the FDCPA and the broad prohibitions set forth in the FDCPA by Congress to curb abusive, deceptive, and unfair debt collection practices. Because of the remedial nature of the FDCPA, its language is construed broadly to protect debtors. In addition, the “least sophisticated debtor” standard is used to determine whether any debt collection practices violate the FDCPA. The “least sophisticated debtor” standard is a very low standard which does requires a plaintiff to prove that he or she was mislead, but only that the least sophisticated debtor could be mislead.
The 3rd Circuit looked at several other court decisions involving similar settlement letters which found that offers to “settle” could mislead the least sophisticated debtor to believe that debt was legally enforceable in court. The 3rd Circuit agreed with its sister courts and held that in the specific context of a debt-collection letter, the least-sophisticated debtor could be misled into thinking that “settlement of the debt” referred to the creditor’s ability to enforce the debt in court rather than a mere invitation to settle the account. The 3rd Circuit concluded that the least-sophisticated debtor could plausibly be misled by the specific language used in Allied’s letter and vacated the District Court’s order granting Allied’s motion to dismiss. However, the 3rd Circuit would not go as far as to hold that standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts constitute deceptive or misleading practices. Additionally, the 3rd Circuit declined to hold that the use of the word “settlement” is “misleading” as a matter of federal law or mandate the use of any specific language. The 3rd Circuit, in keeping with the text and purpose of the FDCPA, reiterated that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.
What it means for creditors is that they must very careful in drafting “settlement offers” for time-barred debt. A settlement offer cannot imply that a time-barred debt is legally enforceable. The 3rd Circuit believed the word “settle” could imply “concluding or avoiding a lawsuit.” Perhaps a disclaimer that no legal action can or will be taken if the debtor choses to voluntarily repay the debt.
With regards to debtors, if the language of settlement letter would mislead an unsophisticated consumer into believing that if he or she does not settle the time-barred debt he or she may be subject to suit, then that letter may violate the FDCPA. A debtor who receives a settlement letter may bring suit against the creditor. Under the FDCPA, a debtor may sue for actual damages, statutory damages of $1,000.00 per violation, and attorney’s fees so long as the suit is commenced within a year of the violation.
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