• Fifth Circuit Finds No Overshadowing in Debt Collector’s Section 1692g Notice
  • August 18, 2012 | Author: Katherine H. Tresley
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • In McMurray v. Procollect Inc., 2012 WL 2892386 (5th Cir. July 16, 2012), the Fifth Circuit considered whether defendant debt collector’s collection letter comported with Section 1692g of the Fair Debt Collection Practices Act (FDCPA). Plaintiff debtor alleged that language in the debt collection letter contradicted and overshadowed the statutorily required notices of her rights. The U.S. District Court for the Northern District of Texas granted the debt collector’s motion for summary judgment.

    In upholding the District Court’s decision, the U.S. Court of Appeals for the Fifth Circuit first found that the collector’s letter was consistent with the Section 1692g(a) notice requirement. The court explained that the letter contained no demand for payment, much less one made within the 30-day statutory contest period. While the court recognized that the letter urged the debtor to take “timely” action, the express reference was to “timely validation” of the debt, not timely payment of it.

    Second, the court rejected the debtor’s contention that the notice was overshadowed by a purported “threat” of bad credit that was placed prominently, while the notice language was at the bottom of the letter. The court explained that the supposed threat fell in the category of “letters [that] encourage debtors to pay their debts by informing them of the possible negative consequences of failing to pay,” words that did not overshadow the required notice language (citing Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 417-18 (7th Cir. 2005)). The court stated that the letter essentially provided such warnings and nothing more. Therefore, the bad-credit warnings did not overshadow the notice language in the letter.

    McMurray v. Procollect Inc., 2012 WL 2892386 (5th Cir. July 16, 2012)