A respite for lawyers…the FDCPA does NOT require plain English in pleadings

I just read the Sixth Circuit’s opinion in Miller v Javitch, Block & Rathbone, 561 F.3d 588 (2009). This case holds good news for debt collection lawyers. In that case, Miller contends that JBR violated the Fair Debt Collection Practices Act by using false, deceptive, and misleading language in a debt-collection complaint. The state court “COMPLAINT [*3] FOR MONEY LOANED” read as follows:
1. Plaintiff acquired, for a valuable consideration, all right, title and interest in and to the claim set forth below originally owed by Defendant(s) to ASTA II/PROVIDIAN -03 /NAT As a result of the assignment, Plaintiff became, and now is, the owner of funds loaned on account number xxxx-xxxx-xxxx-0736.
2. There is presently due the Plaintiff from the Defendant (s) on the money loaned on defendant’s charge card debt, the sum of $ 4,604.56.
[**3] 3. Plaintiff notified Defendant (s) of the assignment and demanded that Defendant (s) pay the balance due on the account, but no part of the forgoing balance has been paid.
4. Defendant (s) is/are in default on this repayment obligation.
WHEREFORE, Plaintiff prays for judgment against Defendant (s) in the amount of $ 4,604.56 with statutory interest from the date of judgment, costs of this action, and such other and further relief as the Court deems just and proper under the circumstances.

The FDCPA uses the “least sophisticated consumer” standard to determine whether something is confusing or misleading. This is a very low standard and hence, its very easy to violate. One would think that the the part of the complaint that refers to “ASTA II/PROVIDIAN -03 /NAT As a result of the assignment,” would easily qualify as a violation of the FDCPA. The court did not think so.
In a very well worded opinion that court held:
[Not] everything a lawyer writes during the course of litigation must be stated in plain English understandable by unsophisticated consumers. However desirable that might be, it is not a command to be found in the FDCPA.. Section 1692e does not require clarity in all writings. What it says is that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. A rule against trickery differs from a command to use plain English and write at a sixth-grade level. . . . Whatever shorthand appeared in the complaint–the payments system through which credit-card slips flow is complex, and even many lawyers don’t grasp all of its details–was harmless rather than an effort to lead anyone astray. It was the judge, not [the plaintiff], who had to be able to determine to whom the debt was owed, for it is the judge (or clerk of court) rather than the defendant who prepares the judgment specifying the relief to which the prevailing party is entitled.
So what does this mean to us collection attorneys? On the surface it appears that the court is holding that the FDCPA is inapplicable to pleadings. When the court states that it is only imporant for the judge or the clerk of the court to know what you are talking about in pleadings, the Sixth Circuit is pushing aside the communication strictures of the statute. Yet, I think this would be too broad of an interpretation because the court fell short of plainly stating that the FDCPA does not apply to pleadings. If it had meant to say that, it would and could have done so in a much more direct fashion. The court simply did not go that far. How do we read this case to stay out of trouble?
I think Javitch could have done away with the gibberish about the assignee and simply named it plainly. By failing to do so, it simply opened the door and invited an FDCPA claim in. Had Javitch simply named the assignee of the Plaintiff’s credit card debt, Ms. Miller could never have been heard to complain about any FDCPA violation.
Moral of the story for collection attorneys – Do not think that this case gives you carte blanche to write your pleadings in legalese or in industry short hand. While the court sided with Javitch in this matter, it did NOT go as far as to say that the FDCPA does not apply to pleadings. The better practice is to write your pleadings in plain English as if you were explaining the complaint to the least sophisticated consumer. Your malpractice insurance carrier will thank you.

This entry was posted on Monday, May 11th, 2009 and is filed under Collection Law Firms in the News . You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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