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Fair Debt Collection: 7.3.3 Relation of Enumerated FDCPA § 1692e Provisions to Its General Deception Standard

FDCPA § 1692e prohibits false, deceptive, or misleading representations or means. In addition, without limiting the general application of the foregoing, section 1692e then enumerates sixteen prohibited practices. A violation of any of the sixteen provisions is actionable, but if a practice does not fit within any of these sixteen, the general section 1692e prohibition of deception still applies.723

Fair Debt Collection: 7.3.4 False vs. Deceptive or Misleading

FDCPA § 1692e prohibits false, deceptive, or misleading representations. Some literally true statements are deceptive or misleading, and thus can be violations, even if not false. Moreover, even if a representation does not mislead a consumer, if it is false, it may be actionable.729 The Eleventh Circuit noted:

Fair Debt Collection: 7.3.5.2 Seventh Circuit’s Unique Approach

The Seventh Circuit has uniquely looked more to trademark law than FTC precedents to address the deception standard. Beginning with his decision in Bartlett v. Heibl, Judge Posner and most other the Seventh Circuit judges equate “confusion,” a key operative term in trademark law, with “deception,” and so look to see whether the least sophisticated consumer would be confused.753

Fair Debt Collection: 7.3.5.3 Actual Injury

Proof of actual damage is not required to establish liability for statutory damages,754 but proof that the deception caused injury will be required to recover actual damages.755 In addition, a FDCPA claim brought in federal court must meet the Article III case or controversy standard for standing.756 Whether a FDCPA § 1692e claim provides sufficient standing is examined at

Fair Debt Collection: 7.3.6 The Least Sophisticated Consumer Standard

As discussed in § 3.2.1.2, supra, the majority of circuit courts have adopted the least sophisticated consumer standard to evaluate alleged FDCPA violations, while a few have adopted a similar standard evaluating whether the “unsophisticated consumer” would find the language of the collection letter deceptive, and one court has applied a “r

Fair Debt Collection: 7.3.8 Proving Deception—Is It a Matter of Law or Fact?

Whether a question is one of law or fact may determine whether the question is subject to a motion to dismiss783 or a summary judgment motion, or whether the question must go to the jury. Questions of law are outside the province of the jury. If a question of law, it may be considered de novo on appeal. If a question of fact, appellate deference must be given to the lower court’s finding.

Fair Debt Collection: 7.3.9.2 Materiality as to Consequences of Payment or Non-Payment

Misleading the consumer as to the consequences of payment or non-payment will almost always be material because it will affect the consumer’s decision-making as to payment of the debt. Misrepresentations that the amount due will continue to increase if payments are not promptly made are thus material,808 because this can affect the consumer’s decision to pay promptly.809

Fair Debt Collection: 7.3.9.3 Materiality as to Inaccuracy of the Amount Due

A collector’s misstatement of the amount due, such as by including unauthorized charges, should almost always be considered material,818 unless the discrepancy is found to be de minimis.819 The misstatement of the amount due can lead to the consumer paying amounts not owed.820 Understating the amount due can also be material in that this, too, may affect the consumer’s repayment decision.821 Confusing

Fair Debt Collection: 7.3.9.4 Materiality as to the Nature or Identity of the Creditor or Collector

The Ninth Circuit has stated that the identity of the original creditor is “a critical piece of information.”826 Misrepresenting the original creditor can unduly complicate a consumer’s efforts to investigate the nature of the debt or know how to respond to the collection effort.827 So can a misrepresentation of who owns the debt at the time of collection, because, again, this affects the consumer’s efforts to contact the owner.828 It is also mater

Fair Debt Collection: 7.4.2 Debt Collector’s Use of Social Media

Regulation F (effective November 30, 2021), implementing FDCPA § 1692e(10), prohibits the “use any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.”879 Regulation F Official Interpretations provide examples of two different ways that a debt collector using social media would violate this provision: one in contacting the consumer and one in contacting third parties for location information.

The Regulation F supplemental information explains:

Fair Debt Collection: 7.4.5 Communications Where Format or Language Is Confusing

Even where a communication does not contain false or deceptive information, the manner of presenting the information can be so confusing or obscure as to present a FDCPA § 1692e violation.907 “Confusing language in a dunning letter can have an intimidating effect by making the recipient feel that he is in over his head and had better pay up rather than question the demand for payment.”908 There can be a FDCPA § 1692e violation where a collection letter instructs the recipient to turn to the reve

Fair Debt Collection: 7.4.7.1 Generally

A common debt collector practice is to seek payment by offering the consumer to settle for less than the full amount if the consumer makes one payment for the settlement amount, or starts a series of payments pursuant to the settlement, or just agrees to the settlement terms. Offers to settle a time-barred debt and use of such settlements to revive a time-barred debt are discussed at § 7.4.9, infra.