District Court (Cal.) Says Dunning Letter’s “will not sue” Language — Versus “cannot” sue — for Time-Barred Debt Was Not Misleading

The Court concludes that, in the context of this case, the “will not sue” language could not plausibly mislead the least sophisticated consumer. A debt collection letter’s potential to mislead the least sophisticated consumer must be assessed based on the entirety of the letter and thus a court should not myopically focus on one aspect of the letter when other language in the letter dispels such potential. Tatis, 882 F.3d at 430 (“[I]n keeping with the text and purpose of the FDCPA,…any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.” (emphasis added)). The Letter’s clarification regarding the legal limitation on the enforceability of the debt—i.e. that enforcement of the debt is legally barred—precedes the phrase “will not sue.” The disclaimer eliminates the ambiguity the Pantoja court found in a debt collector’s use of the phrase “will not sue.” Genova, 193 F. Supp. 3d at 367–68; Filgueiras, 2016 WL 1626958, at *11; see also Miran, 2017 WL 1410296, at *6. The Court thus adopts as an explicit holding what Buchanan made implicit. See Buchanan, 776 F.3d at 400. In light of the disclaimer, the least sophisticated consumer would not plausibly be misled into believing that his time-barred debt is enforceable simply because the Letter uses the phrase “will not sue.” . . . Plaintiff’s Section 1692e claim regarding the Letter’s use of “will not sue” thus reduces to a mere “idiosyncratic” interpretation regarding the Letter’s language, requiring the Court to strain to find an ambiguity that could mislead the least sophisticated consumer where none plausibly exists. Plaintiff’s interpretation is thus insufficient to sustain his FDCPA claim on a motion to dismiss. See Wan v. Commercial Recovery Systems, Inc., 369 F.Supp.2d 1158, 1162 (N.D. Cal. 2005 ) (The “FDCPA ‘does not extend to every bizarre or idiosyncratic interpretation’ of a collection notice but ‘does reach a reasonable interpretation of a notice by even the least sophisticated.”). Accordingly, the Court grants Defendants’ motion to dismiss the Section 1692e claim insofar as it concerns the use of “will not sue” versus “cannot sue.” Plaintiff’s Section 1692eclaim on this basis is dismissed without prejudice.  This is not to say that a debt collector’s mere use of the disclaimer will itself insulate the debt collector from liability. For example, at least one district court has denied a motion to dismiss filed by a party subject to a consent decree because the disclaimer language was undermined by other aspects of the letter. See Shadow v. Midland Credit Mgmt., No. 3:17-cv-02277-L-BLM, 2018 WL 4357980, at *4 (S.D. Cal. Sept. 13, 2018) (rejecting argument that inclusion of disclaimer “immunized” defendant from liability because “the language was not prominently disclosed as required by the Consent Decree” and “MCM included other language that detracted from the required disclosure.”). This Court finds persuasive the line of authorities which have sustained FDCPA claims concerning debt collection letters that contain the disclaimer but which have other language which may mislead the least sophisticated consumer. See Gunther, 2018 WL 4621764, at *8; Holt , 147 F. Supp. 3d at 760–61. But, as the Court will discuss, Plaintiff’s other allegations regarding the Letter in this case do not state an FDCPA claim and thus this line of authority cannot sustain Plaintiff’s Complaint.