In Sears v. Baretta Fin., No. 7:14CV00036, 2015 WL 3507694, at *3 (W.D. Va. June 3, 2015), Judge Conrad found that a debt collection agency’s letter mentioning a “caption” and “case number” when no lawsuit had been filed violated the FDCPA.
According to the complaint, Baretta Financial “regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another,” and, thus, is a “debt collector” for purposes of the FDCPA. See 15 U.S.C. § 1692a(6). In October of 2013, Baretta Financial attempted to collect on a consumer debt that it claimed Sears owed in the amount of $28,646.97. Specifically, on or about October 30, 2013, Baretta Financial sent Sears a letter that was styled as a “LITIGATION NOTICE.” Compl. Ex. B. Its subject line included “BARETTA FINANCIAL vs. DAVID SEARS” and “Case No. KL0000044110.” Id. The letter stated that Sears had ignored previous attempts to resolve the matter and that a lawsuit may be the next step, “resulting in a judgment” against Sears. Id. It also stated that a judgment may be collected through wage garnishment, levy on bank accounts, or liens on real or personal property, among other methods. The letter instructed Sears to contact Baretta Financial within ten days or litigation would be commenced. Baretta Financial has not filed suit against Sears. Sears alleges that the statements in the letter regarding litigation were false, that Barretta Financial knew that they were false at the time the letter was sent, and that the statements were made with the intention of misleading Sears. . . . In this case, the letter sent by Baretta Financial clearly threatened legal action. Not only was the letter styled as a “LITIGATION NOTICE” with the subject line “BARETTA FINANCIAL vs. DAVID SEARS,” it specifically stated that litigation would be commenced if Sears did not contact the company within ten days. Upon reading the letter, the hypothetical least sophisticated consumer undoubtedly would interpret the letter as threatening legal action. See, e.g., Nat’l Fin. Servs., Inc., 98 F.3d at 136–37 (holding that collection notices threatened legal action where the notices indicated that the debtor’s account would be referred to an attorney). The allegations in the complaint further establish that Baretta Financial had no intention of taking legal action. Sears alleges that Baretta Financial has not filed suit against him, that the company falsely represented in the letter that it would file suit, and that Baretta Financial knew that the representations were false at the time the letter was mailed. For these reasons, the court concludes that Sears has a established a violation of § 1692e(5).