Nava Laniado v. Certified Credit & Collection , 636 F. App'x 90 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 15-1857
_____________
NAVA LANIADO,
Appellant
v.
CERTIFIED CREDIT & COLLECTION BUREAU
_____________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 3-14-cv-02798)
District Judge: Honorable Peter G. Sheridan
Submitted under Third Circuit LAR 34.1(a)
on November 10, 2015
(Opinion filed: January 15, 2016)
Before: CHAGARES, SHWARTZ and RENDELL, Circuit Judges
O P I N I O N*
RENDELL, Circuit Judge:
Nava Laniado brought this action alleging that Certified Credit and Collection
Bureau (“Certified Credit”) violated the Fair Debt Collection Practices Act (“FDCPA”).
For support, she relied heavily on Caprio v. Healthcare Revenue Recovery Group, LLC,
709 F.3d 142 (3d Cir. 2013), a case that seems very relevant here. Yet the District Court
granted Certified Credit’s motion to dismiss without addressing this case. We will
therefore vacate the District Court’s order and remand for it to consider Caprio.
This FDCPA action arose from Certified Credit’s written efforts to collect a debt
from Laniado that she allegedly owed to a medical provider. Laniado alleges that, in
violation of the FDCPA, Certified Credit sent her a debt collection letter containing
language that overshadowed or contradicted the statutorily required “validation notice.”
Under 15 U.S.C. § 1692g(a) of the FDCPA, when a debt collector attempts to
collect a debt, it must send the consumer a letter containing a validation notice, which is a
notice that comprises “statements that inform the consumer how to obtain verification of
the debt and that [she] has thirty days in which to do so.” Wilson v. Quadramed Corp.,
225 F.3d 350, 354 (3d Cir. 2000). Specifically, in this notice, the debt collector must
inform the consumer that it will assume the debt’s validity unless the consumer disputes
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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that validity within thirty days; that if the consumer disputes the debt in writing within
the thirty-day period, it will obtain and then mail verification of the debt to the consumer;
and that, upon the consumer’s written request within the thirty-day period, it will provide
the consumer with the name and address of the original creditor, if different from the
current creditor. 15 U.S.C. § 1692g(a)(3)–(5). To be effective, a consumer’s dispute of a
debt in response to the validation notice must be “in writing.” Id. § 1692g(b); see also
Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991).
The validation notice must “be conveyed effectively to the debtor.” Wilson, 225
F.3d at 354. Our case law indicates that this means that the notice cannot be
“overshadowed or contradicted” by other messages or notices sent to the consumer from
the debt collector. Graziano, 950 F.2d at 111. This can occur when some other message
or notice from the debt collector would make “the least sophisticated consumer uncertain
as to her rights.” Wilson, 225 F.3d at 354 (citation and quotation marks omitted).1
In Caprio, for example, we held that a debt collector’s validation notice was
overshadowed or contradicted by a message set out in another section of the letter. There,
the debt collector sent the consumer a letter that conveyed the validation notice on the
back of the letter. As required, the notice informed the consumer of his right to dispute
the debt’s validity “in writing.” Caprio, 709 F.3d at 146. But on the front of the letter, the
debt collector stated that if the consumer felt that he did not owe this amount, “please
1
The “least sophisticated debtor” standard is “lower than simply examining whether
particular language would deceive or mislead a reasonable debtor,” Wilson, 225 F.3d at
354 (internal quotation marks omitted), but it “does not go so far as to provide solace to
the willfully blind or non-observant,” Campuzano-Burgos v. Midland Credit Mgmt., Inc.,
550 F.3d 294, 299 (3d Cir. 2008).
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call us toll free at 800-984-9115 or write us at the above address.” Id. at 145. In addition
to listing the phone number in bold here, the debt collector listed the number at the top of
the letter and in larger font than the mailing address. Given the letter’s substance and
form, we concluded that the least sophisticated debtor likely “would take the easier—but
legally ineffective—alternative of making a toll-free telephone call to dispute the debt
instead of going to the trouble of drafting and then mailing a written dispute.” Id. at 152.
In short, we held that the validation notice “was overshadowed and contradicted because
the least sophisticated debtor would be uncertain as to her rights.” Id. (citation and
quotation marks omitted).
Laniado contends that Caprio controls her case and compels the conclusion that
Certified Credit violated the FDCPA. In February 2014, Certified Credit sent Laniado a
debt collection letter that conveyed the validation notice. But within the thirty-day
validation period, it sent her another letter that stated: “THE ABOVE ACCOUNT HAS
BEEN PLACED WITH US FOR COLLECTION. SETTLEMENT IS EXPECTED TO
BE MADE WITH THIS OFFICE. KINDLY REMIT PAYMENT IN FULL. SHOULD
THERE BE ANY DISCREPANCY PLEASE CALL TOLL FREE 800-253-2920 OR
FOR OUR 24 HOUR AUTOMATED CUSTOMER SERVICE CALL 800-354-4744.”
(App. 63) She argues that this language is analogous to the “please call” language in
Caprio.
The Caprio case was extensively presented to the District Court. Indeed, Laniado
cited it in her complaint and referred to it at oral argument on Certified Credit’s motion to
dismiss. And Certified Credit sought to distinguish the case in its motion and during oral
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argument. In fact, at oral argument, Certified Credit focused almost exclusively on
Caprio.
Nevertheless, the District Court granted Certified Credit’s motion to dismiss,
issuing a ruling from the bench in which it never even referenced Caprio. As a result, we
cannot discern its views as to how, if at all, Caprio affects Laniado’s claims, and so we
will vacate its order dismissing the complaint and remand so that it can specifically
consider Caprio.
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