District Court (Va.) Denies Class Cert. to FDCPA Plaintiff Who Received Dunning Letters in Spanish because Debt Collector Mistakenly Believed that Plaintiff was the Spanish-Speaking Debtor

In Dykes v. Portfolio Recovery Associates, LLC., 2016 WL 346959, at *3-4 (E.D.Va., 2016), Judge Cacheris denied class certification in an FDCPA class action due to lack of ascertain ability.

The class proposed in Plaintiff’s Memorandum in Support of her Motion for Class Certification includes recipients of PRA’s Spanish-language dunning letters who actually speak Spanish and indicated to PRA that they primarily speak Spanish or indicated that they would like to receive correspondence in Spanish. Because the Court finds that those individuals have suffered no violation of the FDCPA, Plaintiff’s proposed class definition is overbroad.  Plaintiff mischaracterizes the nature of her claim when she describes “the key question” as “whether providing notices, required by statute, solely in Spanish violates the FDCPA.” (Pl.’s Mem. in Supp. at 9.) This omits the issue of why PRA is providing the notices in Spanish. A previous memorandum opinion by this Court denying Defendant’s Motion to Dismiss noted that “[t]here is no allegation…that the substance of the Spanish collection letters contained false statements or information; quite simply, they were just written in Spanish, a language [Plaintiff] could not read.” (Mem. Op. at 5.)  Courts have repeatedly held that notices in Spanish are not per se violations of the FDCPA. See, e.g. Reed v. Southwest Credit Sys., LP, 2013 U.S. Dist. WL 1966973, at *4 (S.D. Tex. May 10, 2013)(holding that a Spanish language paragraph giving recipient a phone number to call if they spoke Spanish rather than English did not violate the FDCPA because “[t]here is no evidence…that a Spanish-speaking debtor who received a letter similar to the April 28 letter and who called the phone number would not be given notice in Spanish that complied fully” with the FDCPA); Molina v. Healthcare Revenue Recovery Group, LLC, 2012 U.S. Dist. WL 3067883, at *3 (M.D. Fla. July 27, 2012)(again holding that a Spanish language paragraph in an English letter was not misleading to an English speaker where the letter otherwise complied with the FDCPA). The Plaintiffs in both Reed and Molina, like the plaintiff here, relied on a decision from the Eastern District of New York in the case of Ehrich v. I.C. System, Inc., 681, F.Supp.2d 265, (E.D.N.Y. 2010) holding that the presence of a paragraph in Spanish on an otherwise English-language letter could mislead a Spanish speaking consumer if the Spanish paragraph was deficient under the FDCPA and overshadowed the notice provided by the letter. Id. at 273-274. Ehrich does not stand for the proposition that all FDCPA disclosures must be made in English all the time. Rather, the Eastern District of New York held in Ehrich that where a dunning letter includes writing in Spanish, that writing must comport with the requirements of the FDCPA. Id. While Reed, Molina, and Ehrich all dealt with a single Spanish paragraph in an otherwise predominantly English letter, they each support this Court’s previous assertion that “[t]he plain statutory language of 15 U.S.C. § 1692e(11) does not require English-only disclosures.” (Mem. Op. at 9.) The decision in Reed suggests, and this court agrees, that where the recipient of dunning letters indicates that she primarily speaks Spanish or requests Spanish language disclosures, Spanish-language disclosures can satisfy the FDCPA’s requirements.  Plaintiff argues that the use of LexisNexis’s skip-tracing service to secure the number which led to PRA’s mistaken belief that Plaintiff spoke Spanish was unreasonable in light of the dubious reliability of the skip-tracing service. (Pl.’s Mem. in Supp. at 4.) Plaintiff may be right in this regard, but the reliability of the skip-tracing service is irrelevant to the proper definition of the class in this case. Plaintiff’s cause of action stems from the unsolicited receipt of dunning letters in a language she does not speak. The Plaintiff has not provided, and the Court cannot find, any case where a federal court has found the use of skip-tracing services violates the FDCPA. The crux of Plaintiff’s case is not that PRA violated the FDCPA by using a skip-tracing service, but that PRA violated the FDCPA by sending her a dunning letter written entirely in Spanish without any prior indication by Plaintiff that she primarily spoke Spanish.  There is no allegation in this case that the Spanish letters failed to contain the required “mini-miranda” warnings in Spanish, or that the Spanish letters “could objectively affect the least sophisticated [Spanish-speaking] consumer’s decisionmaking.” Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 126-27 (4th Cir. 2015). No violation is alleged for the recipients of PRA’s Spanish-language dunning letters who indicated that they primarily speak Spanish or indicated that they would like to receive correspondence in Spanish. Any proper definition of the class would have to be limited to individuals who received the Spanish-language dunning letters without first indicating that they primarily speak Spanish or that they would like to receive correspondence in Spanish. Because it is facially apparent that Plaintiff’s proposed class contains many individuals who did not suffer harm at the hands of the Defendant, the Court declines to certify her proposed class.