                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2158
CALDEAN M. CHUWAY,
                                                  Plaintiff-Appellant,
                                  v.

NATIONAL ACTION FINANCIAL SERVICES INC.,
                                                  Defendant-Appellee.

                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 02 C 1247—Joan Humphrey Lefkow, Judge.
                          ____________
    ARGUED JANUARY 21, 2004—DECIDED MARCH 30, 2004
                          ____________



  Before FLAUM, Chief Judge, and POSNER and RIPPLE, Circuit
Judges.
  POSNER, Circuit Judge. The Fair Debt Collection Practices
Act, 15 U.S.C. §§ 1692 et seq., requires that any dunning
letter by a debt collector as defined by the Act state “the
amount of the debt” that the debt collector is trying to
collect. § 1692g(a)(1); Miller v. McCalla, Raymer, Padrick,
Cobb, Nichols & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir.
2000). The defendant, conceded to be a debt collector,
mailed the plaintiff a letter which identifies a creditor (a
2                                                No. 03-2158

credit card company) and states that the “balance” is
$367.42. The letter adds that the company “has assigned
your delinquent account to our agency for collection. Please
remit the balance listed above in the return envelope
provided. To obtain your most current balance information,
please call 1-800-916-9006. Our friendly and experienced
representatives will be glad to assist you and answer any
questions you may have.” The district judge granted
summary judgment for the defendant, ruling that the letter
stated “the amount of the debt” and therefore did not
violate the statute.
  Both parties appeal to our decision in Miller, but it is
not on point. The dunning letter in that case listed the “un-
paid principal balance” of $178,844.65 but added that “this
amount does not include accrued but unpaid interest,
unpaid late charges, escrow advances or other charges. . . .
The amount to reinstate or pay off your loan changes
daily. You may call our office for complete reinstatement
and payoff figures.” Id. at 875. An 800 number was listed.
We held that the letter violated the Act because it did not
state the amount of the debt owed by the plaintiff, since
the debt was not limited to the unpaid principal. See also
Wilkerson v. Bowman, 200 F.R.D. 605, 607-08 (N.D. Ill. 2001).
To determine the amount she would have had to call the de-
fendant. Here—the defendant’s lawyer stated without
contradiction at oral argument—the entire debt that the
defendant was hired to collect was the $367.42 listed as the
“balance.”
  So if the letter had stopped after the “Please remit”
sentence, the defendant would be in the clear. But the letter
didn’t stop there. It went on to instruct the recipient on how
to obtain “your most current balance information.” If this
means that the defendant was dunning her for something
more than $367.42, it’s in trouble because the “something
No. 03-2158                                                  3

more” is not quantified. Actually, as we said, the defendant
hadn’t been hired to collect the current balance of the
plaintiff’s credit card debt, insofar as that current balance
exceeded $367.42. The credit card company, which is to say
the creditor, not the debt collector, may charge the plaintiff
interest on the $367.42 between when that debt accrued and
when the plaintiff finally pays and may add the interest
accruing in the interim to the plaintiff’s current balance. But
that would not be a part of “the amount of the debt” for
which the defendant was dunning her, and hence it would
not precipitate a violation by the defendant. It would be as
if between when the $367.42 debt was turned over to the
defendant for collection and when the plaintiff received the
dunning letter, the plaintiff had defaulted on a separate debt
that she owed the credit card company. The fact that the
defendant didn’t add that to the debt for which it had been
retained to dun the plaintiff would not result in a violation
of the statute. Quite the contrary, for a debt collector has no
authority to collect debts that it has not been authorized by
a creditor to collect; nor was the defendant trying to do that.
This is not a multiple-debt case. Compare Graziano v.
Harrison, 763 F. Supp. 1269, 1276 (D.N.J.) affirmed in part,
reversed in part on other grounds, 950 F.2d 107 (3d Cir.
1991), with Joseph v. J.J. MacIntyre Cos., L.L.C., 238 F. Supp.
2d 1158, 1167-69 (N.D. Cal. 2002).
  But suppose the plaintiff was confused and thought the
reference to the “current balance” meant that the defendant
was trying to collect an additional debt, only not telling her
how large an additional debt and thus violating the statute.
Her affidavit states that she didn’t know whether the de-
fendant wanted just $367.42 or some unknown greater
amount that she could discover only by calling the 800
number. Suppose she had called and discovered that her
current balance was $567.42. She wouldn’t know whether to
mail $367.42 to the defendant or $567.42, without making a
4                                                     No. 03-2158

further inquiry. She might pay the larger amount thinking
she would be sued otherwise, even though the extra $200
might not yet be due, let alone overdue.
   It is not enough that the dunning letter state the amount
of the debt that is due. It must state it clearly enough that
the recipient is likely to understand it. Bartlett v. Heibl, 128
F.3d 497, 500-01 (7th Cir. 1997); Avila v. Rubin, 84 F.3d 222,
226 (7th Cir. 1996); Terran v. Kaplan, 109 F.3d 1428, 1431-32
(9th Cir. 1997); Miller v. Payco-General American Credits, Inc.,
943 F.2d 482, 483-84 (4th Cir. 1991). Otherwise the collection
agency could write the letter in Hittite and have a secure
defense. The defendant concedes the principle but insists
that to withstand summary judgment the plaintiff must
always submit a survey or some other form of systematic
empirical evidence demonstrating the propensity of the
letter to confuse. There is no basis for so flat a rule. Avila v.
Rubin, supra, 84 F.3d at 226-27. If it is apparent just from
reading the letter that it is unclear, as in id. at 227; Bartlett v.
Heibl, supra, 128 F.3d at 501; and Chauncey v. JDR Recovery
Corp., 118 F.3d 516, 519 (7th Cir. 1997), and the plaintiff
testifies credibly that she was indeed confused and that,
unlike the plaintiff in Pettit v. Retrieval Masters Creditors
Bureau, Inc., 211 F.3d 1057, 1061-62 (7th Cir. 2000), she is
representative of the type of people who received that or a
similar letter, no further evidence is necessary to create a
triable issue.
  But if it is unclear whether the letter would confuse in-
tended recipients of it, then to make out a prima facie case
the plaintiff has to go further and present evidence (beyond
her own say-so) of confusion, for example in the form of
a carefully designed and conducted consumer survey. Id.
at 1060-62; Walker v. National Recovery, Inc., 200 F.3d 500,
502, 504 (7th Cir. 1999); Johnson v. Revenue Management Corp.,
169 F.3d 1057, 1059-61 (7th Cir. 1999). No survey was
No. 03-2158                                                     5

conducted here, but the entire bench was confused about
the meaning of the letter until the defendant’s lawyer ex-
plained it to us at the oral argument, and our confusion,
coupled with the plaintiff’s affidavit in which she plausibly
attested that she had been confused by the letter, is enough
to satisfy her burden of proof. For there is no reason to sup-
pose her unrepresentative of the credit card customers to
whom such letters are sent; it is not as if the letter would be
clear to any reasonably competent English speaker but that
unbeknownst to the defendant the plaintiff happens not to
have a good command of the English language.
   It is impossible to draft a letter that is certain to be un-
derstood by every person who receives it; only if it would
confuse a significant fraction of the persons to whom it is
directed will the defendant be liable. “The Act is not vio-
lated by a dunning letter that is susceptible of an ingenious
misreading, for then every dunning letter would violate
it.” White v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000). But
one doesn’t have to be ingenious to misread the defendant’s
letter; one has to be exceptionally ingenious to excavate its
meaning.
   Some decisions, it is true, say that the letter has to be clear
to the least sophisticated consumer. They don’t mean this
literally, because, “literally, the least sophisticated consumer
is not merely ‘below average,’ he is the very last rung on the
sophistication ladder. Stated another way, he is the single
most unsophisticated consumer who exists,” Gammon v. GC
Services Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir.
1994)—which means that he cannot even read, for the
literacy rate in the United States is not 100 percent. So those
decisions sensibly add, as in Clomon v. Jackson, 988 F.2d
1314, 1319 (2d Cir. 1993), that “courts have consistently
applied the least-sophisticated-consumer standard in a
manner that protects debt collectors against liability for
6                                               No. 03-2158

unreasonable misinterpretations of collection notices.” See
also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d
1232, 1236 (5th Cir. 1997). As we explained in Gammon, a
more precise benchmark is the understanding of “the un-
sophisticated debtor,” a formulation which “assumes that
the debtor is ‘uninformed, naive, or trusting,’ [but] that
statements are not confusing or misleading unless a signi-
ficant fraction of the population would be similarly misled.”
Veach v. Sheeks, 316 F.3d 690, 692-93 (7th Cir. 2003).
  The district judge acknowledged that the defendant’s
letter had “the potential to confuse an unsophisticated
consumer”—called the letter “problematic” and said that it
did “a poor job of informing an ‘unsophisticated consumer’
of what the amount of the debt is.” But she thought that this
court had established a rule that unless a letter contains an
outright contradiction, the plaintiff must present evidence
outside of the letter itself and her own testimony. There is
no such rule, and it would not be a defensible gloss of the
Fair Debt Collection Practices Act. A letter can be confusing
even to a sophisticated reader though it does not contain an
outright contradiction— witness the defendant’s letter in
this case.
  Our conclusion does not place debt collectors on a razor’s
edge, where if they say too little they violate the Act by
failing to disclose the amount of the debt they are trying to
collect and if they say too much they violate the Act by
confusing the consumer. If the debt collector is trying to
collect only the amount due on the date the letter is sent,
then he complies with the Act by stating the “balance” due,
stating that the creditor “has assigned your delinquent
account to our agency for collection,” and asking the
recipient to remit the balance listed—and stopping there,
without talk of the “current” balance. If, instead, the debt
collector is trying to collect the listed balance plus the
No. 03-2158                                                  7

interest running on it or other charges, he should use the
safe-harbor language of Miller: “As of the date of this letter,
you owe $___ [the exact amount due]. Because of interest,
late charges, and other charges that may vary from day to
day, the amount due on the day you pay may be greater.
Hence, if you pay the amount shown above, an adjustment
may be necessary after we receive your check, in which
event we will inform you before depositing the check for
collection. For further information, write the undersigned or
call 1-800- [phone number].” Miller v. McCalla, Raymer,
Padrick, Cobb, Nichols & Clark, L.L.C., supra, 214 F.3d at 876.
                                  REVERSED AND REMANDED.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—3-30-04
