                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              ______________

                                    No. 16-3430
                                  ______________

                                NAVA LANIADO,
                                                           Appellant

                                         v.

                 CERTIFIED CREDIT & COLLECTION BUREAU
                             ______________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.C. Civ. No. 3-14-cv-02798)
                    Honorable Peter G. Sheridan, District Judge
                                  ______________

                                Argued May 11, 2017

           BEFORE: AMBRO, RESTREPO, and COWEN, Circuit Judges

                              (Filed: August 29, 2017)

Ari H. Marcus
Yitzchak Zelman [ARGUED]
Marcus & Zelman
1500 Allaire Avenue
Suite 101
Ocean, NJ 07712

      Counsel for Appellant

Peter Cipparulo, III [ARGUED]
Suite K
349 Route 206
Hillsborough, NJ 08844
       Counsel for Appellee

                                     ______________

                                       OPINION*
                                     ______________


COWEN, Circuit Judge.


       Nava Laniado appeals from the order of the United States District Court for the

District of New Jersey granting the motion to dismiss filed by Certified Credit &

Collection Bureau (“Certified Credit”). We will vacate and remand for further

proceedings.

                                             I.

       Laniado filed this action against Certified Credit under the Fair Debt Collection

Practices Act (“FDCPA”). Her allegations implicate two letters sent by Certified Credit:

(1) a letter mailed to Laniado on or about February 13, 2014; and (2) a letter mailed to

Laniado on or about March 5, 2014. It is undisputed that “[t]his initial demand letter

contained the 30-day Validation Notice required by 15 USC § 1692g.” (Appellant’s

Brief at 5.) According to Laniado, the second letter contained language that

overshadowed and contradicted the “Validation Notice” in violation of 15 U.S.C. §§

1692g and 1692e(10).

____________________

*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.



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       Turning to the March 5, 2014 letter, we note that the letterhead listed (below the

debt collector’s name) Certified Credit’s mailing address and a toll-free telephone

number (“PO BOX 336 RARITAN, NJ 08869 TOLL FREE 888.750.9500”). (A53.) The

letterhead also identified Certified Credit’s website and fax number. The bottom part of

the letter evidently consisted of a detachable slip (which Laniado was asked to enclose

with her payment). The slip included Laniado’s name and address as well as information

about the client, account number, date, file number, and “BALANCE DUE” (i.e.,

“216.50”). (Id.) At the very bottom of the page, the document stated the following:

“CALL OUR 24 HOUR AUTOMATED CUSTOMER SERVICE 800-354-4744 OR

VISIT OUR WEBSITE: WWW.CERTIFIEDCCB.COM.” (Id.) Where the return

address would typically be located, Certified Credit’s letter set forth another toll-free

telephone number (“TOLL FREE 800-253-2920”), the date, a subject-matter line, the

patient’s name, the account number, and the date of service. (Id.) It also contained

instructions (below the signature line and above the slip) to see the reverse side for

important information, noted that Certified Credit accepted all major credit cards, and

referred to Western Union and Quick Collect.

       The body of the March 5, 2014 letter consisted of the following three paragraphs:

       THE ABOVE ACCOUNT HAS BEEN PLACED WITH US FOR
       COLLECTION. SETTLEMENT IS EXPECTED TO BE MADE WITH
       THIS OFFICE. KINDLY REMIT PAYMENT IN FULL.

       SHOULD THERE BE ANY DISCREPANY PLEASE CALL TOLL FREE
       800-253-2920 OR FOR OUR 24 HOUR AUTOMATED CUSTOMER
       SERVICE CALL 800-354-4744.



                                              3
         THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT
         COLLECTOR AND ANY INFORMATION OBTAINED WILL BE
         USED FOR THAT PURPOSE.

(A53.)

         Certified Credit moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

The District Court granted its motion, and Laniado appealed. We vacated the order and

remanded for the District Court to consider Caprio v. Healthcare Revenue Recovery

Group, LLC, 709 F.3d 142 (3d Cir. 2013). See Laniado v. Certified Credit & Collection

Bureau, 636 F. App’x 90 (3d Cir. 2016).

         Certified Credit filed another motion to dismiss. Addressing (and distinguishing)

Caprio in its ruling from the bench, the District Court granted the motion.

                                             II.

         The outcome of this appeal ultimately depends on our reading of Caprio. 1

Certified Credit and the District Court have indicated that Caprio and the debt collection

letter at issue in that case are distinguishable, while Laniado characterizes the March 5,

2014 letter as “Caprio 2.0” (Appellant’s Brief at 15). We conclude that Certified Credit’s

second letter to Laniado—like the letter the debt collector sent in Caprio—overshadowed

and contradicted the Validation Notice.



         1
        The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
and we have appellate jurisdiction under 28 U.S.C. § 1291. We exercise de novo review
with respect to a district court’s dismissal for failure to state a claim pursuant to Rule
12(b)(6). See, e.g., Wilson v. Quadramed Corp., 225 F.3d 350, 353 (3d Cir. 2000).
Whether language in a collection letter contradicts or overshadows the validation notice
presents a question of law. See, e.g., Caprio, 709 F.3d at 147.

                                              4
       15 U.S.C. § 1692g(a) requires the debt collector to provide the following

information to the debtor:

       (1) the amount of the debt;

       (2) the name of the creditor to whom the debt is owed;

       (3) a statement 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;

       (4) a statement that if the consumer notifies the debt collector in writing
       within the thirty-day period that the debt, or any portion thereof, is
       disputed, the debt collector will obtain verification of the debt or a copy of
       a judgment against the consumer and a copy of such verification or
       judgment will be mailed to the consumer by the debt collector; and

       (5) a statement that, upon the consumer’s written request within the thirty-
       day period, the debt collector will provide the consumer with the name and
       address of the original creditor, if different from the current creditor.

“Paragraphs 3 through 5 of section 1692g(a) contain the validation notice—the

statements that inform the consumer how to obtain verification of the debt and that he has

thirty days in which to do so.” Caprio, 709 F.3d at 147 (quoting Wilson, 225 F.3d 350,

353-54 (3d Cir. 2000)). Under 28 U.S.C. § 1692g(b), a debt collector must “cease all

collection efforts if the consumer provides written notice that he or she disputes the debt

or requests the name of the original creditor until the debt collector mails either the debt

verification or creditor’s name to the consumer.” Wilson, 225 F.3d at 354. However, in

order to be effective, the dispute must be in writing. Caprio, 225 F.3d at 148 (quoting

Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991)).

       The validation notice must “be conveyed effectively to the debtor.” Wilson, 225

F.3d at 354 (citing Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir.

                                              5
1991)). In short, this means that the notice must not be overshadowed or contradicted by

other messages or notices from the debt collector. See, e.g., 15 U.S.C. § 1692g(b);

Caprio, 709 F.3d at 148-49. We apply the “least sophisticated debtor” standard in order

to ascertain whether the debt collector has overshadowed or contradicted the validation

notice. See, e.g., Caprio, 709 F.3d at 149. While even the least sophisticated debtor is

held to a basic quotient of reasonableness and understanding (i.e., he or she is expected to

read any notice in its entirety with some care, and the debt collector cannot be held liable

for bizarre or idiosyncratic interpretations), this standard is intended to protect all

consumers—the gullible as well as the shrewd. See, e.g., id. Accordingly, the standard is

less demanding than one that simply considers whether the language would mislead or

deceive a reasonable debtor. See, e.g., id. “The Court of Appeals for the Second Circuit

elaborated that a collection letter ‘is deceptive when it can be reasonably read to have two

or more different meanings, one of which is inaccurate.’” Wilson, 225 F.3d at 354

(quoting Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996)).

       In Caprio, we explained that “[t]he Validation Notice on the reverse side of [the

debt collector’s] Collection Letter—at least when viewed in isolation—satisfied this

statutory scheme.” Caprio, 709 F.3d at 149. In addition, the letter did not threaten or

encourage Caprio to waive his statutory right to challenge the debt’s validity. Id.; see

also id. at 149-50 (addressing Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991),

and Wilson, which did consider claims of improper threats or demands). Instead,

Caprio’s case against the debt collector “rests on the ‘please call’ language contained in

the second paragraph of the body of the Collection Letter: ‘If we can answer any

                                               6
questions, or if you feel you do not owe this amount, please call us toll free at 800-984-

9115 or write us at the above address.’” Id. at 150 (citation omitted).

       We determined that, pursuant to the “least sophisticated debtor” standard, “both

the ‘substance’ as well as the ‘form’ of this Collection Letter overshadowed and

contradicted the Validation Notice.” Id. at 151 (quoting Wilson, 225 F.3d at 361).

“[T]he Collection Letter was deceptive because ‘it can be reasonably read to have two or

more different meanings, one of which is inaccurate,’ i.e., that Caprio could dispute the

debt by making a telephone call.” Id. at 152 (quoting Wilson, 225 F.3d at 354). We

reach the same conclusion here.

       Considering the substance of the March 5, 2014 letter that Certified Credit sent to

Laniado, we find that it is materially indistinguishable from the letter at issue in Caprio.

The debt collector’s letter in Caprio instructed “to call or write ‘if you feel you do not

owe this amount.’” Id. at 151 (citation omitted). “At the very least, the ‘least

sophisticated debtor’ could reasonably “feel” that he or she “do[es] not owe this amount”

if he or she actually disputed the debt and its validity. If so, this “please call” language

basically instructed such a debtor to call or write in order to dispute the debt itself.” Id. at

151. Likewise, the letter currently before us instructed Laniado to call either a toll-free

telephone number or a 24-hour automated customer service number should there be any

discrepancy. The least sophisticated debtor could reasonably believe there was a

discrepancy if he or she “actually disputed the debt and its validity.” “If so, this ‘please

call’ language basically instructed such a debtor to call . . . to dispute the debt itself.

While he or she certainly could (and, in actuality, must) raise a debt dispute in writing, it

                                                7
is well established that a telephone call is not a legally effective alternative for disputing

the debt.” Id. (citing Graziano, 950 F.2d at 112).

       According to Certified Credit (and the District Court), the March 5, 2014 letter

“‘is a simple attempt to collect a debt’” (Appellee’s Brief at 13 (quoting A13-A14)),

“invites the receiver to discuss the account and settlement” (id. at 15), and “is merely

continued collection activity and encourages settlement” (id.). Certified Credit argues

that the language at issue here must be understood as a continuation of its statements in

the preceding paragraph reminding Laniado of the placement of the account for

collection, indicating that settlement is expected with Certified Credit, and requesting

payment in full. The letter could perhaps be read as nothing more than an invitation to

communicate, pay, or reach some sort of compromise. “However, it is not our

responsibility to decide whether the debtor or the debt collector offers ‘a more

appropriate reading’ of a debt collection letter.” Id. In fact, we ruled in Caprio’s favor

even though we acknowledged that “this ‘please call’ language could be read as nothing

more than a mere invitation given other aspects of the Collection Letter.” Id. We did so

because the document must be understood from the perspective of the least sophisticated

debtor—a standard that protects even the gullible. Id. at 249, 251. In turn, the March 5,

2014 letter “did more than merely ask [Laniado] to call . . . if ‘we can answer questions.’”

Id. at 152 (distinguishing Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997)); see also, e.g.,

id. at 153 n.1 (“In addition to lacking ‘repeated instructions’ to read the reverse side of

the document before taking any further action, [the debt collector’s] Collection Letter

went beyond merely asking Caprio to ‘if appropriate please call our office to resolve this

                                               8
matter.’” (distinguishing Miller v. Wolpoff & Abramson, L.L.P.¸ 321 F.3d 292 (2d Cir.

2003))). Unlike the Caprio letter, this letter did not even offer a choice between making a

telephone call or writing a letter. At the very least, the least sophisticated debtor could

read the second paragraph—with its express language instructing the debtor to “PLEASE

CALL” should there be “ANY DISCREPANCY”—as more than a mere continuation of

the debt collector’s request for payment or for settlement discussions.

       The form of the correspondence also weighs in favor of Laniado. Initially, the

Caprio Court still ruled against the debt collector even though its letter, like the

correspondence at issue here, was not “filled with the kind of ‘threatening’ language and

formatting choices clearly condemned by the courts” (in cases like Payco-General). Id. at

154 (citing Wilson, 225 F.3d at 358). Unlike the Caprio letter (which used bold text to

highlight the words “please call” and the toll-free telephone number and used a smaller

font for the mailing address than the telephone number in the letterhead), id. at 151-52,

the body of the March 5, 2014 letter used the same font, and Certified Credit’s mailing

address was listed in the letterhead in the same sized font as one of its toll-free telephone

numbers. The mailing address nevertheless still only appeared in the letterhead, while

the document included a total of five references to three different toll-free telephone

numbers. In addition, we reiterate that Certified Credit did not even give the least

sophisticated debtor the choice “to write us at the above address.”

       Finally, we, like the District Court, acknowledge that this case implicates “two

separate letters” and that “plaintiff does not dispute the February validation letter, which

indicated that she must dispute the debt in writing, complied with the FDCPA.” (A16.)

                                               9
According to the Seventh Circuit, “not every follow-up letter sent during the validation

period must automatically reiterate the safe harbor validation notice, refer back to that

notice, or remind debtors about the validation period and the time remaining in that

period.” Durkin v. Equifax Check Servs., 406 F.3d 410, 417 (7th Cir. 2005). However,

the question before us is not whether a subsequent letter sent during the 30-day validation

period must always reiterate the validation notice. Instead, we must determine whether

the March 5, 2014 letter overshadowed or contradicted the otherwise appropriate

Validation Notice set forth in the initial letter mailed on or about February 13, 2014. See,

e.g., id. (“Rather, the matter turns on whether the specific text contains any impermissible

overshadowing or contradiction with respect to the validation notice.” (citing Chauncey

v. JDR Recovery, Inc., 118 F.3d 516, 518-19 (7th Cir. 1997))). Given the substance and

form of the second letter, we conclude that it did overshadow and contradict the notice.

In fact, the first letter appears to represent the functional equivalent of a validation notice

set forth on the reverse side of a single letter. Just as the debt collector in Caprio set forth

the “please call” language on the front of the letter and “relegated” the “required

Validation Notice” to “the back side of the Collection Letter,” Caprio, 709 F.3d at 152,

Certified Credit included its “PLEASE CALL” language in a letter mailed ten days

before the expiration of the validation period—while “relegating” the legally mandated

validation notice to a letter it had sent to Laniado more than three weeks earlier. Unlike

its counterpart in Caprio (which included an instruction in all capital letters directing

Caprio to see the reverse side for important information, id. at 151), the March 5, 2014

letter did not even mention or otherwise refer to the February 13, 2014 letter. Given the

                                              10
circumstances, it is certainly conceivable that the least sophisticated debtor wishing to

dispute the debt could follow the apparent instruction set forth in a mailing received

shortly before the deadline and make an ineffective toll-free phone call to do so.

       We accordingly conclude that the District Court committed reversible error by

dismissing Laniado’s § 1692g claim. Having done so, “we must reach the same

conclusion with respect to the claim brought under § 1692e(10).” Id. at 155.

                                            III.

       For the foregoing reasons, we will vacate the District Court’s order granting

Certified Credit’s motion to dismiss and will remand for further proceedings consistent

with this opinion.




                                             11
