3d Circuit Says Debt Collector’s Inclusion of Language “please call us . . . if you feel you do not owe this amount” in its 30-day Validation Letter ‘Overshadowed’ the Debtor’s Right to Validate within 30-days

In Caprio v. Healthcare Revenue Recovery Group, LLC, — F.3d —-, 2013 WL 765169 (3d Cir. 2013), the Court of Appeals for the Third Circuit held that a debt collector’s inclusion of the language “please call us toll free at 800–984–9115 or write us at the above address if you feel you do not owe this amount” in its 30-day validation letter was language that ‘overshadowed’ the debtor’s right to validate within 30-days.

In any case, the Terran court ultimately determined that the challenged language “simply encourages the debtor to communicate with the debt collection agency” and “does not threaten or encourage the least sophisticated debtor to waive his statutory right to challenge the validity of the debt.” Terran, 109 F.3d at 1434. In contrast, HRRG’s Collection Letter did more than merely ask Caprio to call or write if “we can answer any questions.” (JA Vol. II at 16.) It also asked him to “please call us toll free at 800–984–9115 or write us at the above address” if “you feel you do not owe this amount.” (Id.) In addition, the text of the Terran letter was presented in the same ordinary font and without any particular emphasis (with the exception of the debtor’s name and the name of the person to contact), and the required validation notice appeared on the front side of the document (in the third and final paragraph). ¶ . . . The Fourth Circuit’s opinion thereby provides some additional support for our conclusion that the Validation Notice was overshadowed and contradicted by the Collection Letter. We acknowledge the Fourth Circuit’s decision involved more than just an instruction to make a telephone call and that it actually considered a debt collection letter filled with the kind of “threatening” language and formatting choices clearly condemned by the courts. See, e.g., Wilson, 225 F.3d at 358 (“The offending language in the Miller letter, as well as the format, could not be more different from the Quadramed letter.”). However, just as Payco–General stated that, “ ‘IF THERE IS A VALID REASON, PHONE U.S. AT [telephone number] TODAY,’ “ Payco–General, 943 F.2d at 483 (alteration in original), HRRG instructed Caprio that, “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” (JA Vol. II at 16). At the very least, HRRG’s Collection Letter more closely resembled the debt collection letter at issue in Payco–General than the document considered in Terran. Accordingly, we likewise “hold that the collection agency did not effectively convey certain statutorily required information to the consumer.”