     Case: 11-10291   Document: 00511922326     Page: 1   Date Filed: 07/16/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                   July 16, 2012
                                   No. 11-10291
                                                                   Lyle W. Cayce
                                                                        Clerk
JANET MCMURRAY,

                                             Plaintiff-Appellant
v.

PROCOLLECT, INCORPORATED,

                                             Defendant-Appellee


                  Appeal from the United States District Court
                       for the Northern District of Texas


Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        An individual owing a debt sued a debt collection agency. The suit alleged
the agency’s debt-collection letter violated the Fair Debt Collection Practices Act
by contradicting and overshadowing the statutory notices in the letter. The
district court concluded that the letter did not violate the statute. We AFFIRM.
                FACTUAL AND PROCEDURAL BACKGROUND
        In September 2009, ProCollect, a debt collector, mailed a letter to Janet
McMurray, attempting to collect $716.41 that she allegedly owed Highland Oaks
Apartments. After the opening salutation, the letter states, in non-bold typeface:
        Your account has been referred to us for collection. It is important
        that you pay your debt as failure to timely validate the referenced
        amount due will cause us to report your account to the credit
        reporting agencies. The negative mark can remain on your credit
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                                  No. 11-10291

      for up to seven (7) years, and may among other things significantly
      affect your ability to:

            (1) OBTAIN CREDIT;
            (2) OBTAIN EMPLOYMENT;
            (3) PURCHASE HOME OR CAR; OR
            (4) QUALIFY FOR APARTMENT RENTAL.

      Please add a $7.50 collection fee to each payment made. If you have
      any questions regarding your account please call the number above.
      If you wish to pay your debt online, please visit us at
      www.procollect.com.

(Capitalization in original). The letter then signs off, “Cordially, Curt Bond /
ProCollect, Inc.,” which is followed by two lines of text of the same size, but
bolded: a line in Spanish, and a line stating, “To pay your debt online please visit
www.procollect.com.” Toward the bottom, following a significant amount of
blank space, the letter contains the following message, in bold typeface of the
same font and size as above:

      This is an attempt to collect a debt. This communication is
      from a debt collector. Any information obtained will be used
      for that purpose. Unless you dispute the validity of this debt
      or any portion thereof within 30 days of the receipt of the
      notice, we will assume that the debt is valid. If you notify us
      in writing within the 30 day period that the debt or any
      portion thereof is disputed we will mail you a verification of
      the debt or a copy of the judgment.

Directly below this message is a payment slip for McMurray to fill out, tear off,
and send to ProCollect.
      In January 2010, McMurray filed this action in the United States District
Court for the Northern District of Texas, claiming ProCollect’s letter violated the
Fair Debt Collection Practices Act (“FDCPA”) and the Texas Deceptive Trade
Practices Act. She claimed that the main text of ProCollect’s letter contradicted
and overshadowed the statutorily-required notice, at the bottom of the letter,

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providing notice of her rights under the statute. McMurray sought monetary
damages and injunctive relief preventing ProCollect’s continued alleged
violations. McMurray moved for summary judgment on the FDCPA claim, and
ProCollect moved for summary judgment on both claims. In February 2011, the
district court denied McMurray’s motion and granted ProCollect’s. McMurray
timely appealed, challenging only the ruling on her FDCPA claim.
                                   DISCUSSION
      The purpose of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692
et seq., is to “eliminate abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e).
Debt collectors are required, within five days of the initial communication
regarding a debt, to provide consumers with a written notice that contains this
information: (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 “disputes the
validity of the debt” within 30 days, the debt collector will assume the debt is
valid; (4) a statement that if the consumer notifies the collector that the
consumer is disputing the debt in writing within the 30 day period, “the debt
collector will obtain verification of the debt [from the creditor] . . . and a copy of
[the] verification . . . will be mailed to the consumer”; and (5) “a statement that,
upon the consumer’s written request,” the debt collector will give the consumer
“the name and address of the original creditor, if different from the current
creditor.” 15 U.S.C. § 1692g(a).
      A debt collector violates the FDCPA by failing to provide the information
required by Section 1692g(a). DeSantis v. Computer Credit, Inc., 269 F.3d 159,
161 (2d Cir. 2001). Merely including the required notice in letters to consumers
is not sufficient. The notice must also “be set forth in a form and within a

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context that does not distort or obfuscate its meaning.” Peter v. GC Servs. L.P.,
310 F.3d 344, 348 (5th Cir. 2002). A debt collector may violate Section 1692g if
other language in its communication with consumers “overshadow[s]” or is
“inconsistent with” the statutorily-mandated notice. 15 U.S.C. § 1692g(b).1
       McMurray alleges that portions of ProCollect’s letter overshadowed and
contradicted the Section 1692g(a) notice found at the bottom of the letter.2 The
district court disagreed. ProCollect’s letter did not demand payment within the
30-day statutory contest period. The court concluded that the language of the
letter was plain and understandable from the perspective of the least
sophisticated consumer. Lastly, the court relied on a decision issued by another
district court in this circuit in which that court analyzed an almost identical
letter and found that the Section 1692g(a) notice had not been overshadowed.
       We review a district court’s order granting summary judgment de novo.
Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011).
“A summary judgment motion is properly granted only when, viewing the
evidence in the light most favorable to the nonmoving party, the record indicates
that there is no genuine issue as to any material fact and that the moving party


       1
          Prior to the 2006 amendment, nothing in the FDCPA expressly precluded language
in a collection letter from overshadowing or contradicting the mandated notice, but courts had
grafted such a requirement onto the statute. See Jacobson v. Healthcare Fin. Servs. Inc., 516
F.3d 85, 90-91 (2d Cir. 2008). Section 1692g(b) currently states, in relevant part: “Any
collection activities and communication during the 30-day period may not overshadow or be
inconsistent with the disclosure of the consumer’s right to dispute the debt or request the
name and address of the original creditor.” 15 U.S.C. § 1692g(b) (as amended by the Financial
Services Regulatory Relief Act of 2006, Pub. L. No. 109-351, § 802(c), 120 Stat. 1966, 2006-07
(2006)).
       2
         McMurray, in her briefs to the court, appears to use the terms “contradict” and
“inconsistent” interchangeably. This is probably because case law prior to the 2006
amendment to Section 1692g (see supra n.1) held that Section 1692g was violated by
overshadowing and “contradictory” communications. Although the 2006 amendment used the
term “inconsistent” rather than “contradict,” because the 2006 amendment codified the
referenced case law, see Jacobson, 516 F.3d at 90-91, we too treat the terms, in this context,
as interchangeable.

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is entitled to judgment as a matter of law.” Barker v. Halliburton Co., 645 F.3d
297, 299 (5th Cir. 2011) (quotation marks and citation omitted).
      The sole issue presented by the parties on appeal is whether the district
court properly held that ProCollect’s letter comports with Section 1692g.
      We “must evaluate any potential deception in the letter under an
unsophisticated or least sophisticated consumer standard.” Goswami v. Am.
Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004). We “assume that the
plaintiff-debtor is neither shrewd nor experienced in dealing with creditors.” Id.
The least sophisticated consumer standard “serves the dual purpose of
protecting all consumers, including the inexperienced, the untrained and the
credulous, from deceptive debt collection practices and protecting debt collectors
against liability for bizarre or idiosyncratic consumer interpretations of
collection materials.” Taylor v. Perrin, Landry deLaunay & Durand, 103 F.3d
1232, 1236 (5th Cir. 1997). The unsophisticated consumer standard “serves the
same purposes and apparently would lead to the same results in most cases,
except that it is designed to protect consumers of below average sophistication
or intelligence without having the standard tied to the very last rung on the
sophistication ladder.”3 Id. (quotation marks and citation omitted).
I. Inconsistency
      Peter has been our only occasion to interpret 15 U.S.C. § 1692g(a)-(b). We
affirmed the district court’s grant of summary judgment for the defendant debt
collector. Peter, 310 F.3d at 353. The letter at issue included this:
      YOUR STUDENT LOAN, WHICH IS IN SERIOUS DEFAULT,
      HAS BEEN REFERRED TO GC SERVICES—A CONTRACTED
      PROFESSIONAL COLLECTION AGENCY—BY THE U.S.
      DEPARTMENT OF EDUCATION (ED). FULL COLLECTION



      3
       This court has yet to choose between the standards of least-sophisticated consumer
and unsophisticated consumer. Peter, 310 F.3d at 348 n.1. We need not do so now.

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      ACTIVITY WILL CONTINUE UNTIL THIS ACCOUNT IS PAID IN
      FULL.
                              ...

      TO AVOID FURTHER COLLECTION ACTIVITY,                             YOUR
      STUDENT LOAN MUST BE PAID IN FULL.

Id. at 347 (capitalization in original). The validation notice was on the reverse
side of the letter. Id.
      The consumer argued that the Section 1692g(a) notice’s message that she
had 30 days in which to dispute the validity of the debt was contradicted by two
lines of the collection letter: “Full collection activity will continue until this
account is paid in full. . . . To avoid further collection activity, your student loan
must be paid in full.” Id. at 349. The plaintiff did not claim an overshadowing
violation. Id. at 349 n.2.
      We found no contradiction in the letter. “Courts have generally found
contradiction or apparent contradiction of the printed § 1692g notice where
payment is demanded in a concrete period shorter than the 30-day statutory
contest period.” Id. at 349. In addition, “[d]emands for ‘immediate payment’ or
payment ‘now’ have also been found to appear to contradict the 30-day contest
period notice, at least where their relationship to the 30-day window is not
explained.” Id. “By contrast, statements that request payment or other actions
with no time period specified have been found not to contradict the § 1692g
notice.” Id. In Peter, we concluded that because the letter did not demand
payment within less than 30 days, it did not violate Section 1692g. Id. at 350.
      ProCollect’s letter was not inconsistent with the Section 1692g(a) notice.
As in Peter, the letter contains no demand for payment, much less a demand for
payment within the 30-day statutory contest period. Although ProCollect’s letter
does urge McMurray to take “timely” action, the express reference is to “timely
validation” of the debt, not timely payment of it. McMurray’s contention that


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                                   No. 11-10291

“validation” should be equated with payment is not persuasive. Not only is such
an interpretation inconsistent with the plain meaning of “validation,” it is
inconsistent with this subsequent reference to that word: “Unless you dispute
the validity of this debt or any portion thereof within 30 days of the receipt of the
notice, we will assume that the debt is valid.” This statement makes clear that
the letter’s earlier reference to “timely validation” refers not to payment of the
debt but to the act of disputing the debt’s validity within 30 days.
      A comparison of the letter’s disputed passage and the Section 1692g(a)
notice demonstrates their consistency. The notice language communicates the
following: (1) an assumption that there is a debt; and that (2) if McMurray does
not dispute the validity of the debt within 30 days, (3) ProCollect will assume its
validity. The “failure to timely validate” sentence conforms with the notice, the
only differences being: the word “timely” is used rather than “within 30 days”;
and in stating that failure to validate the debt would result in its being reported
to credit agencies, ProCollect’s assumption that the debt is valid if not disputed
is implicit rather than expressly stated.       Neither a least-sophisticated or
unsophisticated consumer would be confused after reading these two passages.
II. Overshadowing
      McMurray contends that the notice was overshadowed by the following:
There was a “threat” of bad credit that was placed prominently, while the notice
language was at the bottom of the letter; there were four listed examples of
bad-credit consequences in capitalized lettering; and the demand to “timely
validate” was inconsistent with the Section 1692g(a) notice.
      We have already determined that the “timely validate” language is not
inconsistent with the letter’s notice. While overshadowing is a different inquiry
than inconsistency, we conclude that McMurray’s overshadowing argument as
to the “timely validate” language fails for similar reasons.



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                                  No. 11-10291

      The supposed threat falls in the category of “letters [that] encourage
debtors to pay their debts by informing them of the possible negative
consequences of failing to pay,” words that do not overshadow the required notice
language. Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 417-18 (7th Cir.
2005). This is because “one way to encourage someone with a true dispute to
come forward and resolve that dispute is to inform him of the possible negative
consequences of his continued inaction.” Id. at 418 n.7. “Not only does this
encouragement promote payment of valid debts, it also promotes disclosing
genuine claims of invalid debts (such as . . . demonstrating the debt resulted
from a forgery).” Id. “Promoting final resolution of such matters, either way, is
inherently beneficial.” Id. The letter in this case essentially provided such
warnings and nothing more. Thus, the notice language in ProCollect’s letter is
not overshadowed by the letter’s bad-credit warnings.
      We also conclude that the physical attributes of ProCollect’s Section
1692g(a) notice do not cause an overshadowing. The notice is located on the
same page as the language contested by McMurray, is in bold typeface (unlike
the contested language), and of the same size and font as the rest of the letter.
Also significant is that the notice is located immediately above the line provided
for tearing off the payment form, and thus, by this spacial proximity, provided
visual confirmation that payment was not the only option. Cf. Sims v. GC Servs.
L.P., 445 F.3d 959, 963-64 (7th Cir. 2006) (concluding statement on letter’s front
in prominent, red, bold, capital lettering that “important consumer information”
on back was not overshadowed by text on front asking for prompt payment of
debts, despite notice text on back being more difficult to read than text on front).
      ProCollect’s collection letter was not inconsistent with and did not
overshadow the letter’s Section 1692g(a) notice. Therefore, a least-sophisticated
or unsophisticated consumer would not be confused by the letter.
      AFFIRMED.

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