     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 18, 2018

                               2018COA150

No. 17CA1504 Garrett v. Credit Bureau — Consumers —
Colorado Fair Debt Collection Practices Act — Least
Sophisticated Consumer

     A division of the court of appeals considers whether a debt

collector’s communications with a consumer complied with the

Colorado Fair Debt Collection Practices Act (CFDCPA). Here, a

consumer sued a collection agency, asserting that the language of

its communications overshadowed and contradicted the statutory

requirements of the CFDCPA.

     In resolving this case, the division elaborates upon and applies

the “least sophisticated consumer” standard identified in Flood v.

Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008), for

determining compliance under the CFDCPA.
     Reviewing the issue de novo, the division concludes that the

collection agency’s use of the bold and capitalized phrase “WE

CANNOT HELP YOU UNLESS YOU CALL” would be confusing to

the “least sophisticated consumer.”
COLORADO COURT OF APPEALS                                     2018COA150


Court of Appeals No. 17CA1504
Arapahoe County District Court No. 16CV32132
Honorable John L. Wheeler, Judge


Deborah Garrett,

Plaintiff-Appellant,

v.

Credit Bureau of Carbon County, d/b/a Collection Center, Inc.,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division II
                           Opinion by JUDGE DAILEY
                       Lichtenstein and Ashby, JJ., concur

                          Announced October 18, 2018


The Law Office of Gary Merenstein, P.C., Gary Merenstein, Lafayette, Colorado;
Berg Hill Greenleaf Ruscitti, LLP, Alan C. Friedberg, Boulder, Colorado, for
Plaintiff-Appellant

Edmonds & Logue, P.C., Rocky L. Edmonds, Jeffrey M. Logue, Fort Collins,
Colorado, for Defendant-Appellee
¶1    Debt collectors sometimes attempt to collect debts from the

 wrong person, debts that a consumer has already paid, and debts

 in an amount a consumer does not owe. Among other things, the

 Colorado Fair Debt Collection Practices Act (CFDCPA), sections 5-

 16-101 to -135, C.R.S. 2018,1 gives a consumer rights to require

 debt collectors to provide (1) notice of the consumer’s right to

 dispute the debt and (2) proof of the validation (or verification) of

 the debt. With respect to the former right, the supreme court has

 determined that the CFDCPA prohibits debt collectors from

 providing notices that would be misleading or confusing to the least

 sophisticated consumer.

¶2    Colorado law is largely silent on the attributes of a “least

 sophisticated consumer.” And it is also silent on who — judge or

 jury — determines what such a consumer would understand. In

 this opinion, we address those issues — and others — in reversing

 the district court’s order granting summary judgment for defendant,



 1 The CFDCPA was previously codified at sections 12-14-101
 to -137, C.R.S. 2016. This entire article was repealed in HB 17-
 1238, Ch. 260, secs. 1, 25, 26, 2017 Colo. Sess. Laws 1079-1105,
 1176, effective August 9, 2017, and relocated to sections 5-16-101
 to -135, C.R.S. 2018.

                                    1
 Credit Bureau of Carbon County, d/b/a Collection Center, Inc.

 (Credit Bureau), and against plaintiff, Deborah Garrett.

                           I.    Background

¶3    Credit Bureau is an agency that collects or attempts to collect

 debts owed, due, or asserted to be owed or due to another. On July

 12, 2016, it sent Garrett a collection notice demanding payment in

 the amount of $834.96 on a consumer debt allegedly owed to the

 University of Colorado Hospital. On August 1, 2016, Credit Bureau

 sent Garrett a second collection notice.

¶4    Subsequently, Garrett sued Credit Bureau based on the

 contents of the two notices. In her amended complaint, she sought

 statutory damages, reasonable attorney fees, and costs because of

 abusive, deceptive, and unfair practices prohibited by the CFDCPA.

¶5    Both parties asserted that there were no disputed material

 facts, and both parties filed dispositive motions. In a very detailed,

 twenty-seven-page written analysis, the district court concluded

 that Credit Bureau’s notices had not violated the CFDCPA.

 Consequently, the court denied Garrett’s motion for judgment on

 the pleadings, granted Credit Bureau’s motion for summary

 judgment, and dismissed the case.


                                    2
                     II.        Credit Bureau’s Notices

¶6    Garrett contends that the district court wrongly concluded

 that Credit Bureau did not violate the CFDCPA. We agree.

¶7    We review de novo the district court’s grant of summary

 judgment. TCD, Inc. v. Am. Family Mut. Ins. Co., 2012 COA 65, ¶ 6.

 Summary judgment should be granted only if there is a clear

 showing that no genuine issue as to any material fact exists and the

 moving party is entitled to judgment as a matter of law. Id.

¶8    Because we agree with the parties that there is no genuine

 issue of material fact, the question in this case is whether Credit

 Bureau is entitled to judgment as a matter of law.

                           A.     General Principles

¶9    In Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769

 (Colo. 2008), the supreme court recognized that the CFDCPA and

 its federal counterpart, the Fair Debt Collection Practices Act

 (FDCPA), 15 U.S.C. §§ 1692 to 1692p (2018), “share[] the remedial

 purpose of protecting consumers against debt collection practices

 that take advantage of gullible, unwary, trustful, or cowed persons




                                        3
  who receive a debt collection communication.” 176 P.3d at 773.2

  To this end, those statutes require debt collectors or collection

  agencies to (1) provide a “debt validation” notice and (2) refrain from

  engaging in certain types of acts. See id. at 774.

¶ 10   Regarding the “debt validation” notice, section 5-16-109(1),

  C.R.S. 2018 requires that a debt collector or collection agency send

  a consumer debtor a written notice disclosing, as pertinent here,

  the following:

             (a) The amount of the debt;

             ....

             (c) That, unless the consumer, within thirty
             days after receipt of the notice, disputes the
             validity of the debt, or any portion thereof, the
             debt will be assumed to be valid by the debt
             collector or collection agency;

             (d) That, if the consumer notifies the debt
             collector or collection agency in writing within
             the thirty-day period that the debt, or any


  2 Because the CFDCPA’s provisions parallel those of the FDCPA, the
  court in Flood v. Mercantile Adjustment Bureau, LLC, looked to
  “federal caselaw for persuasive guidance bearing on the
  construction of our state’s law.” 176 P.3d 769, 772-73 (Colo. 2008).
  Similarly, we may look to federal cases applying the FDCPA for
  guidance. See Adams v. Corr. Corp. of America, 264 P.3d 640, 643
  (Colo. App. 2011) (“When a federal law is similar to a Colorado
  statute, federal cases may be useful, although not determinative, in
  analyzing comparable language in the Colorado provision.”).

                                     4
               portion thereof, is disputed, the debt collector
               or collection agency will obtain verification of
               the debt or a copy of a judgment against the
               consumer and a copy of the verification or
               judgment will be mailed to the consumer by
               the debt collector or collection agency . . . .3

¶ 11     As to prohibited activities, the CFDCPA forbids a debt collector

  or collection agency from using “any false, deceptive, or misleading

  representation” in collecting a debt. § 5-16-107(1), C.R.S. 2018. In

  Flood, the supreme court noted with approval that federal

  authorities require that statutorily mandated disclosures

               be effectively conveyed in a suitable size that
               can be “easily read” and does not contain
               “contradictory” phraseology:



  3   Relatedly, section 5-16-109(2), C.R.S. 2018, states as follows:

               If the consumer notifies the debt collector or
               collection agency in writing within the thirty-
               day period described in subsection (1)(c) of this
               section that the debt, or any portion thereof, is
               disputed or that the consumer requests the
               name and address of the original creditor, the
               debt collector or collection agency shall cease
               collection of the debt, or any disputed portion
               thereof, until the debt collection or collection
               agency obtains verification of the debt or a
               copy of a judgment or the name and address of
               the original creditor and mails a copy of the
               verification or judgment or name and address
               of the original creditor to the consumer.


                                       5
                  The [FDCPA] is not satisfied merely by
                  inclusion of the required debt validation
                  notice; the notice Congress required must
                  be conveyed effectively to the debtor. It
                  must be large enough to be easily read
                  and sufficiently prominent to be noticed
                  — even by the least sophisticated debtor.
                  Furthermore, to be effective, the notice
                  must not be overshadowed or
                  contradicted by other messages or notices
                  appearing in the initial communication
                  from the collection agency.

  Flood, 176 P.3d at 773 (quoting Swanson v. S. Or. Credit Serv., Inc.,

  869 F.2d 1222, 1225 (9th Cir. 1998)).

¶ 12   Overshadowing occurs when the collection letter contains the

  requisite validation notice, but that information is obscured or

  diminished by the letter’s presentation or format. See, e.g., Pollard

  v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 104 (1st Cir.

  2014) (Overshadowing is “[t]ypically . . . based upon the visual

  characteristics of a collection letter, such as when a letter demands

  payment in large, attention-grabbing type and relegates the

  validation notice to fine or otherwise hard-to-read print.”); Conquest

  v. Plaza Servs., LLC, No. 2:17cv106, 2017 WL 3401513, at *4 (E.D.

  Va. Aug. 8, 2017) (“A validation notice is ‘overshadowed’ when a

  letter’s ‘manner of presentation’ would mislead a consumer to



                                    6
  disregard the notice.” (quoting Turner v. Shenandoah Legal Grp.,

  P.C., No. 3:06cv045, 2006 WL 1685698, at *6 (E.D. Va. June 12,

  2006))); Seplak v. IMBS, Inc., No. 98 C 5973, 1999 WL 104730, at *3

  n.3 (N.D. Ill. Feb. 23, 1999) (“Overshadowing ordinarily occurs

  through the use of inconsistent, unusually small, or confusing

  typeface.”).

¶ 13   Contradiction “occurs where language which accompanies the

  validation notice is inconsistent with and therefore contradicts the

  substance of the rights and duties imposed by [the statute].”

  Morgan v. Credit Adjustment Bd., Inc., 999 F. Supp. 803, 807 (E.D.

  Va. 1998); see McMurray v. ProCollect, Inc., 687 F.3d 665, 668 (5th

  Cir. 2012) (“A debt collector may violate [the FDCPA] if other

  language in its communication with consumers . . . is ‘inconsistent

  with’ the statutorily-mandated notice.” (quoting 15 U.S.C.

  § 1692g(b) (2018))). “Inconsistencies . . . can occur in various

  shapes and sizes. They may be either literal or apparent.” Pollard,

  766 F.3d at 104. An example of an “apparent” contradiction is

  “where [a collection agency’s] letter both demands payment within

  thirty days and explains the consumer’s right to demand validation

  within thirty days, [because] confusion will result if the letter does


                                     7
  not also explain how these two rights fit together.” Wilson v.

  Quadramed Corp., 225 F.3d 350, 355 n.4 (3d Cir. 2000).

¶ 14   In Pollard, the First Circuit Court of Appeals aptly noted:

            Whether the controversy centers on
            overshadowing or inconsistency, the inquiry
            reduces to whether a particular collection
            letter would confuse the unsophisticated
            consumer. This inquiry is to be conducted
            with a recognition that confusion can occur in
            a myriad of ways, such as when a letter
            visually buries the required validation notice,
            contains logical inconsistencies, fails to
            explain an apparent inconsistency, or presents
            some combination of these (or similar) vices.
            In the last analysis, a collection letter is
            confusing if, after reading it, the
            unsophisticated consumer would be left
            unsure of her right to dispute the debt and
            request information concerning the original
            creditor.

  766 F.3d at 104 (citations omitted).

                       B.    Garrett’s Contentions

¶ 15   There is no dispute that, in its July 12, 2016, debt validation

  notice, Credit Bureau provided Garrett with the information

  mandated by subsections 5-16-109(1)(c) and (d).4 But Garrett




  4The back of the July 12, 2016, notice provided, in pertinent part,
  as follows:


                                    8
  contends that this information was contradicted by other language

  in the July 12 and August 1 notices or overshadowed by the

  language or format Credit Bureau used in presenting the

  information. She also contends that Credit Bureau did not

  sufficiently disclose the amount of her purported debt, as required

  by section 5-16-109(1)(a).

¶ 16   We need not address Garrett’s second contention because we

  conclude that, for purposes of the CFDCPA, Credit Bureau’s debt

  validation notices were confusing.




            Unless you, the consumer, notify this
            collection agency within thirty days after the
            receipt of this notice that you dispute the
            validity of the debt or any portion thereof, the
            debt will be assumed to be valid by this
            collection agency. If you, the consumer, notify
            this collection agency in writing within thirty
            days after receipt of this notice, that the debt
            or any portion thereof is disputed, this
            collection agency will obtain verification of the
            debt or a copy of a judgment against you and a
            copy of such verification or judgment will be
            mailed to you by this collection agency. Upon
            your written request sent within thirty days
            after receipt of this notice, this collection
            agency will provide you with the name and
            address of the original creditor if different from
            the current creditor.


                                    9
       C.     Credit Bureau’s Notices Were Confusing with Respect to
            the Required Section 5-16-109(1)(c) and (d) Disclosures

                         1.    Confusing to Whom?

¶ 17    In Flood, the supreme court adopted the “least sophisticated

  consumer” (or debtor) standard for determining whether a collection

  agency’s notice was confusing with respect to statutorily required

  disclosures. 176 P.3d at 773. “This standard recognizes that the

  [CFDCPA] protects the gullible and the shrewd alike while

  simultaneously presuming a basic level of reasonableness and

  understanding on the part of the debtor, thus preventing liability for

  bizarre or idiosyncratic interpretations of debt collection notices.”

  Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir.

  2014) (applying FDCPA). “The test is objective, and asks whether

  there is a reasonable likelihood that an unsophisticated consumer

  who is willing to consider carefully the contents of a communication

  might yet be misled by them.” Grden v. Leikin Ingber & Winters PC,

  643 F.3d 169, 172 (6th Cir. 2011).5


  5As noted, “[t]he standard is an objective one, meaning that the
  specific plaintiff need not prove that she was actually confused or
  misled, only that the objective least sophisticated debtor would be.”
  Jensen v. Pressler & Pressler, 791 F.3d 413, 419 (3d Cir. 2015); see
  Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st

                                     10
¶ 18   The “least sophisticated consumer” (or debtor) is one who does

  not have “the astuteness of a ‘Philadelphia lawyer’ or even the

  sophistication of the average, everyday, common consumer.”

  Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). This

  consumer is “neither shrewd nor experienced in dealing with

  creditors.” McMurray, 687 F.3d at 669 (quoting Goswami v. Am.

  Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004)). This

  consumer is “gullible, unwary, trustful, or cowed.” Flood, 176 P.3d

  at 773.

¶ 19   The least sophisticated consumer is, though, “neither

  irrational nor a dolt.” Ellis v. Solomon & Solomon, P.C., 591 F.3d

  130, 135 (2d Cir. 2010). This consumer is “presumed to possess a

  rudimentary amount of information about the world and a

  willingness to read a collection notice with some care.’” Clomon v.

  Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)); see Williams v. OSI

  Educ. Servs., Inc., 505 F.3d 675, 678 (7th Cir. 2007) (“The

  Cir. 2014) (“[T]he FDCPA does not require that a plaintiff actually be
  confused.”); see also Jacobson v. Healthcare Fin. Servs., Inc., 516
  F.3d 85, 91 (2d Cir. 2008) (“[T]he FDCPA enlists the efforts of
  sophisticated consumers . . . as ‘private attorneys general’ to aid
  their less sophisticated counterparts, who are unlikely themselves
  to bring suit under the Act, but who are assumed by the Act to
  benefit from the deterrent effect of civil actions brought by others.”).

                                    11
unsophisticated consumer . . . possesses ‘rudimentary knowledge

about the financial world, is wise enough to read collection notices

with added care, possesses “reasonable intelligence,” and is capable

of making basic logical deductions and inferences.’” (quoting Pettit

v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th

Cir. 2000))).6 The least sophisticated consumer is also assumed to


6   As noted by the District of Columbia Circuit Court of Appeals:

            The term “unsophisticated” [consumer] is
            probably more accurate because the “least
            sophisticated” consumer is “not merely ‘below
            average,’ he is the very last rung on the
            sophistication ladder,” and “would likely not be
            able to read a collection notice with care (or at
            all), let alone interpret it in a reasonable
            fashion.”

Jones v. Dufek, 830 F.3d 523, 525 n.2 (D.C. Cir. 2016) (quoting
Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1257 (7th Cir.
1994)).

Most courts consider the “least sophisticated consumer” and the
“unsophisticated consumer” tests to be alternative articulations of
the same basic test. See Jones, 830 F.3d at 525 n.2; Kalebaugh v.
Berman & Rabin, P.A., 43 F. Supp. 3d 1215, 1220-21 (D. Kan.
2014). At least one federal circuit court of appeals, however,
applies the “unsophisticated consumer” standard somewhat
differently, holding that, under that standard, statements from a
collection agency are not confusing or misleading unless a
significant fraction of the population would be misled. See, e.g.,
Chuway v. Nat’l Action Fin. Servs. Inc., 362 F.3d 944, 948-49 (7th
Cir. 2004). At times, the district court here applied the “least

                                   12
possess “a quotient of reasonableness and . . . a basic level of

understanding.” Elyazidi v. SunTrust Bank, 780 F.3d 227, 234 (4th

Cir. 2015) (quoting United States v. Nat’l Fin. Servs., Inc., 98 F.3d

131, 136 (4th Cir. 1996)); see Evon v. Law Offices of Sidney Mickell,

688 F.3d 1015, 1027 (9th Cir. 2012) (“Most courts agree that

although the least sophisticated debtor may be uninformed, naive,

and gullible, nonetheless her interpretation of a collection notice

cannot be bizarre or unreasonable.”); Strand v. Diversified Collection

Serv., Inc., 380 F.3d 316, 317-18 (8th Cir. 2004) (“[T]he

unsophisticated-consumer standard . . . contains an objective

element of reasonableness to protect debt collectors from liability

for peculiar interpretations of collection letters.”); see also Ellis, 591

F.3d at 135 (“While protecting those consumers most susceptible to

abusive debt collection practices, this Court has been careful not to

conflate lack of sophistication with unreasonableness.”).7




sophisticated consumer” standard by asking whether “a significant
fraction of the population would be misled.”

7Accordingly, some courts reference the standard in terms of an
“unsophisticated, but reasonable, consumer.” Turner v. J.V.D.B. &
Assocs., Inc., 330 F.3d 991, 995 (7th Cir. 2003); see also Wallace v.
Wash. Mut. Bank, F.A., 683 F.3d 323, 326-27 (6th Cir. 2012) (The

                                    13
¶ 20   Ultimately, the question is “whether under the least

  sophisticated debtor standard, [the debt collector’s] letter to [the

  debtor] ‘can be reasonably read to have two different meanings, one

  of which is inaccurate.’” Jensen v. Pressler & Pressler, 791 F.3d

  413, 418-20 (3d Cir. 2015) (quoting Rosenau v. Unifund Corp., 539

  F.3d 218, 223 (3d Cir. 2008)); see Arias v. Gutman, Mintz, Baker &

  Sonnenfeldt LLP, 875 F.3d 128, 135 (2d Cir. 2017) (The issue is

  “‘whether the hypothetical least sophisticated consumer could

  reasonably interpret’ the representation in a way that is

  inaccurate.” (quoting Easterling v. Collecto, Inc., 692 F.3d 229, 234

  (2d Cir. 2012))); Dutton v. Wolhar, 809 F. Supp. 1130, 1141 (D. Del.

  1992) (The “least sophisticated debtor is not charged with gleaning

  the more subtle of the two interpretations” of a collection notice.).8




  FDCPA is violated if “a statement would tend to mislead or confuse
  the reasonable unsophisticated consumer.”).

  8Garrett contends that the district court misapplied the “least
  sophisticated consumer” standard. She does not, however, explain
  how the court did so, other than to disagree with the court’s
  conclusions. Because, as set forth below, we analyze the issues
  here de novo, we need not further consider this “contention.”

                                     14
                         2.     Standard of Review

¶ 21   At oral argument, the parties agreed that we should review de

  novo the district court’s determination of this issue.

¶ 22   Some federal authorities, however, view this determination as

  a question of fact, not law. See Russell v. Absolute Collection Servs.,

  Inc., 763 F.3d 385, 395 (4th Cir. 2014) (noting a split in the circuits

  over whether the issue presents a question of fact or law). But we

  treat the issue as one of law, subject to de novo review, for the

  following reasons:

           “The majority of courts that have considered the issue

             have held that the question of whether a validation notice

             is overshadowed or contradicted is a question of law

             appropriate for summary judgment.” Hamilton v. Capio

             Partners, LLC, 237 F. Supp. 3d 1109, 1113 (D. Colo.

             2017).

           “[T]he interpretation of a debt collection letter, under the

             [FDCPA], does not involve any historical facts or other

             factual disputes that are the usual forage of juries.”

             Gonzalez v. Kay, 577 F.3d 600, 611 (5th Cir. 2009) (Jolly,

             J., dissenting).

                                     15
          “[J]udges historically are capable of fairly applying

            objective standards to undisputed facts.” Id.

          “[A] serious policy consideration is implicated here: the

            uniform application of a [state] statute. Debt collectors

            often send the same letter to thousands of consumers

            throughout the country. Judicial determination of the

            deceptiveness of such letters establishes precedent and

            provides predictability to the parties engaged in these

            transactions.” Id.

          Treating it as a question of law is consistent with the way

            the supreme court analyzed the issues in Flood. See 176

            P.3d at 772-76 (effectively applying a de novo standard of

            review).

                             3.   Analysis

¶ 23   Garrett contends that the format and content of Credit

  Bureau’s notices overshadowed or contradicted the statutorily

  required disclosures made by Credit Bureau. In support of this

  contention, she asserts numerous grounds. We are persuaded by

  one of them.




                                   16
¶ 24    In Flood, the supreme court noted that the provisions now

  found in section 5-16-109(1) and (2)

             confer upon the recipient of a debt collection
             communication the right to obtain from the
             debt collection agency proof that he or she
             actually incurred the debt or suffered the
             judgment upon which the collection effort is
             based. This important right guards against
             such problems as identity theft, sending a debt
             collection communication to a person who has
             the same name as the debtor but is not that
             person, seeking an amount of payment that
             exceeds the debt owed, and seeking collection
             of a debt that has already been paid.

  176 P.3d at 774. Crucially, the supreme court added:

             However, the recipient of the communication
             loses the right to require that the collection
             agency provide this information if he or she
             fails to dispute the debt, or any portion
             thereof, in writing within thirty days of receipt
             of the collection agency’s communication.

  Id.

¶ 25    Garrett asserts that Credit Bureau’s second notice would have

  created confusion in the mind of the least sophisticated consumer

  with respect to the consumer’s obligation to dispute a debt in

  writing within the requisite thirty-day period. This confusion, she

  asserts, is caused by the inclusion in the second notice of




                                     17
  capitalized and bolded language in a larger font than the rest of the

  notice stating, “WE CANNOT HELP YOU UNLESS YOU CALL.”

¶ 26   The district court admirably — and, in our view, correctly —

  addressed a multitude of assertions made by Garrett. But the court

  appears to have overlooked this particular assertion. Consequently,

  it did not analyze whether the appearance and text of the above-

  mentioned, large, capitalized, and bolded language was capable of

  being reasonably interpreted by the least sophisticated consumer in

  two different ways, one of which would be inaccurate.

¶ 27   Certainly, there is nothing in the text of the quoted statement

  that would necessarily contradict the notice of rights (and

  obligations) provided to Garrett two and a half weeks earlier. But

  Credit Bureau’s second notice — which arrived within the thirty-day

  window — does not reference those rights and obligations in any

  fashion. And it says, in larger font, with capitalized and bolded

  lettering, “WE CANNOT HELP YOU UNLESS YOU CALL.”

¶ 28   In Flood, the supreme court recognized that the CFDCPA does

  not penalize or prohibit a collection agency from inviting oral

  communication from a consumer. 176 P.3d at 776. But, in our

  view, the above-quoted language did more than simply invite oral


                                    18
  communication. The statement is directed at a particular audience,

  i.e., “You” (the consumer); the use of the forceful words “cannot”

  and “unless” conveys to a reader a strong sense of limitation —

  indeed, an inability to do anything on the consumer’s behalf except

  on the condition that the consumer calls.9 The statement, read as a

  whole, carries with it the implication that “we can only help you if

  you call.”

¶ 29   At oral argument, Credit Bureau asserted that the least

  sophisticated consumer would apply the word “help” only to the

  means by which to resolve or pay a debt. But, in our view, the least

  sophisticated consumer could also (and, indeed, would most likely)

  apply the word “help” to encompass the means by which to avoid

  the debt in whole or in part — something that, by statute, could not

  be accomplished via a phone call, but could only be accomplished

  in writing, and within thirty days of the initial communication. To

  this extent, the second notice conveyed the same “[p]ick up the


  9 “‘Cannot’ connotes, not unwillingness, but inability.” Di
  Bennedetto v. Di Rocco, 93 A.2d 474, 475 (Pa. 1953). Also, “[t]he
  ‘unless’ clause . . . ‘implies a condition, the non-happening of which
  prevents a right from arising.’” P. V. v. L. W., 603 P.2d 316, 318
  (N.M. Ct. App. 1980) (quoting In re Wiegand, 27 F. Supp. 725, 729
  (S.D. Cal. 1939)).

                                    19
  phone and let’s talk, you really don’t need to write” tone as was

  found improper in Flood. See 176 P.3d at 776.

¶ 30   Because, in our view, Credit Bureau’s “WE CANNOT HELP

  YOU UNLESS YOU CALL” statement was capable of being

  reasonably interpreted by the least sophisticated consumer as

  changing the manner in which the consumer was required by law to

  dispute the debt or its amount, it was, as a matter of law, deceptive

  or misleading in violation of the CFDCPA.

                      III.   Attorney Fees on Appeal

¶ 31   We reject Credit Bureau’s request for appellate attorney fees.

  Credit Bureau makes the conclusory assertion that it is entitled to

  an award of attorney fees “under the CFDCPA” because Garrett’s

  assertions on appeal are “spurious, without merit or support, and

  were brought for purposes of harassment.” The manner in which

  we have resolved this appeal, however, belies this assertion.

¶ 32   Garrett, on the other hand, is entitled to an award of

  reasonable attorney fees incurred on appeal. See § 5-16-113,

  C.R.S. 2018; Flood, 176 P.3d at 777. Because the district court is

  better situated to make the necessary factual determinations

  related to the attorney fee request, we exercise our discretion under


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  C.A.R. 39.1 and direct the district court on remand to award

  Garrett her statutory damages, costs, and a reasonable amount of

  her attorney fees incurred on appeal.

                            IV.   Disposition

¶ 33   The judgment is reversed, and the matter is remanded with

  directions to enter judgment on the pleadings in favor of Garrett,

  and to award Garrett her statutory damages, costs, and reasonable

  attorney fees.

       JUDGE LICHTENSTEIN and JUDGE ASHBY concur.




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