Johnson v. Revenue Management Corp.

Decision Date01 March 1999
Docket NumberNos. 98-3001,98-3146,s. 98-3001
PartiesLenora JOHNSON, Plaintiff-Appellant, v. REVENUE MANAGEMENT CORPORATION, et al., Defendants-Appellees. Brendt Wollert, Plaintiff-Appellant, v. Client Services, Inc., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Daniel A. Edelman, Michelle R. Teggelaar (argued), Edelman & Combs, Chicago, IL, for Lenora Johnson.

Michael Dockterman, Jennifer K. Walter (argued), Wildman, Harrold, Allen & Dixon, Chicago, IL, for Revenue Management Corporation.

Daniel A. Edelman, James O. Latturner (argued), Edelman & Combs, Chicago, IL, for Brendt Wollert.

Joseph M. Eichberger (argued), McSherry & Associates, Chicago, IL, for Client Services, Incorporated.


EASTERBROOK, Circuit Judge.

Within five days after a debt collector first duns a consumer debtor, the collector must send a notice saying, among other things, that unless the debtor "disputes the validity of the debt" within 30 days the debt collector will assume that the debt is valid, but that if the debtor notifies the collector in writing within 30 days that he is disputing the debt then "the debt collector will obtain verification of the debt [from the creditor] ... and a copy of [the] verification ... will be mailed to the consumer." 15 U.S.C. § 1692g(a)(1)-(4). Bartlett v. Heibl, 128 F.3d 497 (7th Cir.1997), holds that this section, part of the Fair Debt Collection Practices Act, also obliges the collector to refrain from confusing the debtor by undercutting the required notice or implying a different obligation. Accord, Savino v. Computer Credit, Inc., 164 F.3d 81 (2d Cir.1998). An unelaborated demand that the debt be paid "immediately" (or, as in Bartlett, "within one week"), or a threat of immediate suit, violates the Act by implying that the debtor does not have 30 days to ask for verification--or at least could convey this message to an unsophisticated consumer, the kind to whom the Act is addressed, see Gammon v. GC Services Limited Partnership, 27 F.3d 1254 (7th Cir.1994), unless accompanied by additional reconciling language, such as that payment is due "immediately" only when the debt is uncontested. For the Act's notice-and-verification requirement covers only those claims that are contested or reasonably contestable; bona fide debts that are overdue are, well, overdue, and payable pronto. Moreover, the creditor is entitled to file suit whenever it chooses, though progress in the suit may be delayed by verification. Bartlett suggests language that would help an unsophisticated reader see how a demand for swift payment of acknowledged debts may be reconciled with a 30-day period to request verification of the debt collector's claims.

Two collection agencies sent letters that gave rise to the class-action suits that we have consolidated for decision today. Both letters contained a paraphrase of the statutory notice. The letter to Lenora Johnson added:

If you fail to make prompt payment we will have no alternative but to proceed with collection, which may include referring this account for legal action or reporting this delinquency to the credit bureau.

Should you wish to discuss this matter, contact our office and ask for extension 772.

The letter to Brendt Wollert related:

The above account has been placed with our firm for payment in full.

Call our office immediately upon receipt of this letter. Our toll free number is 1-800-521-3236.

Neither letter attempted to explain how a demand for "prompt" or "immediate" action could be reconciled with the statutory 30-day period. Each letter led to a suit contending that a demand for "prompt" payment or an "immediate" call would confuse unsophisticated recipients about their statutory rights; Wollert adds that the request to "call immediately" laid a snare because some unsophisticated consumers would think that they could obtain verification by a phone call, while the Act specifies that the request must be written.

Judge Lindberg, presiding in Johnson, issued a one-page order dismissing the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted. He concluded that a demand for "prompt payment" neither "contradicts" nor "overshadows" the statutory disclosures and therefore cannot violate the Act. Judge Shadur, to whom Wollert was assigned, issued an order before the debt collector answered the complaint requiring Wollert's lawyers to file a list of supporting citations. The order forbade any elaboration. After receiving the list, Judge Shadur wrote that "[a]ll of the authorities sought to be adduced by plaintiff's counsel in their client's favor involve variants totally unlike what is at issue here" and concluded that "this kind of lawsuit and others like it [serve] as examples of the [class action's] potential for abuse. As a long-time staunch proponent both of the class-action concept as such and of its appropriate utilization in situations where (for example) a major disparity in resources or in staying power might otherwise cause legitimate grievances to be lost for reasons unrelated to their merits, this Court decries the institution of actions such as this one." 1998 U.S. Dist. L EXIS 12241, 1998 WL 474118 at * 2 (N.D.Ill.1998). Later Judge Shadur dismissed the complaint; the order did not specify the subsection of the civil rules involved.

Neither of these decisions is tenable: Judge Lindberg used the wrong legal standard, and Judge Shadur used an inappropriate procedure. Rule 12(b)(6) should be employed only when the complaint does not present a legal claim. A contention that a debt-collection notice is confusing is a recognized legal claim; no more is needed to survive a motion under Rule 12(b)(6). See Bennett v. Schmidt, 153 F.3d 516 (7th Cir.1998). Such a claim may fail on the facts, but assessing factual support for a suit is not the office of Rule 12(b)(6). Moreover, as we observed in Bartlett, although many opinions inquire whether language in a dunning letter "contradicts or overshadows" the statutory notice, these words are not themselves the applicable rule of law; a court must inquire whether the letter is confusing. 128 F.3d at 500-01. Language that contradicts or overshadows the statutory notice may make a letter confusing, but to say that these are sufficient means of showing confusion is not to say that they are necessary. "A contradiction is just one means of inducing confusion; 'overshadowing' is just another; and the most common is a third, the failure to explain an apparent though not actual contradiction". Id. at 500 (emphasis in original). The district court in Johnson never asked whether "the failure to explain an apparent though not actual contradiction" between the demand for an "immediate" call and the 30 days to give written notice made the letter confusing. As for Wollert: the district judge effectively dismissed the case on the pleadings under Fed.R.Civ.P. 12(c), but without using the procedures that rule prescribes. A judge should not rebuff a litigant's effort to supplement the complaint or provide legal argument in support of the suit. Because complaints need not articulate legal theories, see Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992), and because the skeletal presentation in a notice pleading may be fleshed out later, a decision without giving plaintiff the opportunity to argue or augment his position is premature.

The two dispositions in the district court share an additional assumption: that whether a dunning letter is "confusing" is a question to be answered solely by applying the rules of logic to the text of the letter. But why should that be so? As we noted in Bartlett, a letter may confuse even though it is not internally contradictory. Unsophisticated readers may require more explanation than do federal judges; what seems pellucid to a judge, a legally sophisticated reader, may be opaque to someone whose formal education ended after sixth grade. To learn how an unsophisticated reader reacts to a letter, the judge may need to receive evidence. A concurring opinion in Gammon suggested that this evidence might include the kind of surveys used to measure confusion in trademark cases. 27 F.3d at 1260.

If all the plaintiffs have to go on is the language of these letters, they must lose in the end. Plaintiffs' apparent belief that Bartlett requires explanatory language is wrong: an explanation may prevent confusion from arising, but when one is missing the factual question remains. Did the letter confuse its recipients--and confuse them about the statutory entitlements, not just about what words such as "prompt" mean in the abstract. If the letter effectively advises the consumer about the statutory entitlements, then the Act has been satisfied.

At oral argument counsel for Johnson and Wollert said that they do not plan to rest on the bare language of the letters but want to introduce additional evidence. As in trademark cases, where confusion is an issue of fact rather than law, see Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 912 (7th Cir.1996); Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1428 (7th Cir.1985), they are entitled to do so, and to receive relief if on a more complete record the trier of fact concludes that the letters are sufficiently confusing that unsophisticated consumers fail to understand their rights. As in trademark cases, it will be necessary to show that the additional language of the letters unacceptably increases the level of confusion; many unsophisticated consumers would be confused even if the letters they received contained nothing more than a statement of the debt and the statutory notice. (That's what it means to call them "unsophisticated.")

Just as surveys in trademark cases attempt to measure the level of consumer confusion between...

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