Anne O' Boyle v. Real Time Resolutions, Inc. ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1936
ANNE O’BOYLE,
Plaintiff-Appellant,
v.
REAL TIME RESOLUTIONS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 17-C-0957 — Lynn Adelman, Judge.
____________________
ARGUED OCTOBER 24, 2018 — DECIDED DECEMBER 7, 2018
____________________
Before BAUER, MANION, and BRENNAN, Circuit Judges.
MANION, Circuit Judge. Anne O’Boyle claimed a debt-
collection letter sent by Real Time Resolutions, Inc. (“RTR”)
violated the Fair Debt Collection Practices Act. The letter
stated that important information was on the back of its first
page, but the required validation notice was on the front of its
second page. The district court dismissed for failure to state a
claim and denied leave to amend the complaint. O’Boyle
appeals. We affirm.
2 No. 18-1936
I. Facts
At all times germane, O’Boyle was a “consumer” under
the FDCPA, residing in Wisconsin. RTR attempted to collect
an alleged personal credit card debt from her. RTR mailed her
a debt-collection letter consisting of two sheets of paper. This
was the first letter RTR sent to her about this debt.
The front side of the first sheet displays RTR’s header and
the date of the letter: “04/07/2017.” Below that is information
regarding the creditor and balance. “Dear ANNE O’BOYLE,”
the letter begins, “You are hereby notified that the collection
duties associated with the above referenced account, that is
the right to collect payments from you, are being transferred
from NORDSTROM FSB to REAL TIME RESOLUTIONS,
INC. (‘RTR’) effective 04/06/2017.”
Framed in a box just below the middle of this page is a
paragraph warning O’Boyle that RTR is a debt collector, this
“is an attempt to collect a debt, and any information obtained
will be used for that purpose.”
Immediately below that box is another box directing
O’Boyle to see the reverse of the first sheet: “Please see the
back of this page for additional important information
regarding this account.” Next come some addresses. Finally,
the bottom of the page (twice) shows the pagination: “1 of 2.”
The back of the first page begins with these sentences in
bold: “THE FOLLOWING NOTICES APPLY TO THE
RESIDENTS OF THE FOLLOWING STATES, AS NOTED.
THIS LIST IS NOT A COMPLETE LIST OF RIGHTS
CONSUMERS MAY HAVE UNDER STATE AND
FEDERAL LAW.” Then comes information about ten States.
Wisconsin occupies the penultimate slot with only a banal
No. 18-1936 3
notice about the collection agency’s licensing. The back of the
first page does not include any pagination.
The front of the second page begins like the front of the
first, with RTR’s header and the date. Then, as the first
paragraph on the second page, comes the FDCPA-required
validation notice:
Unless you notify this office within 30 days after
receiving this notice that you dispute the
validity of this debt or any portion thereof, this
office will assume this debt is valid. If you notify
this office in writing within 30 days of receiving
this notice, this office will obtain verification of
the debt or obtain a copy of a judgment if
applicable and mail you a copy of such
verification or judgment. If you make a written
request to this office within 30 days after
receiving this notice, this office will provide you
with the name and address of the original
creditor, if different from the current creditor.
We are required under various state laws to
notify consumers of certain rights.
This text is clear, prominent, and readily readable. The font is
normal in shape and size—essentially the same font as most
of the letter. O’Boyle does not claim any problem regarding
the font or regarding the language itself in this paragraph.
Then come addresses for correspondence and payments,
a phone number, some parting caveats, and the closing:
“Sincerely, REAL TIME RESOLUTIONS, INC.” And the
bottom (twice) shows the pagination: “2 of 2.” The back of the
second sheet is blank, so far as the record reflects.
4 No. 18-1936
In sum, the validation notice is not on either side of the
first sheet. The front of this sheet directs the reader to “the
back of this page for additional important information” but
that “additional important information” does not include the
notice. Instead, the notice is at the second sheet’s front top.
II. Procedural Posture
O’Boyle sued RTR for violating the FDCPA. She filed a
class action complaint alleging a single count: RTR’s letter
misleads the unsophisticated consumer by telling him that
important information is on the back, but instead providing
the validation notice on the front of the second page, thereby
“overshadowing” the consumer’s rights under 15 U.S.C. §
1692g(b) and failing to communicate the FDCPA rights
effectively. She argues RTR’s letter misdirects consumers
away from the validation notice. She argues the misdirection
falsely represents that this notice is unimportant, and
overshadows the disclosure of dispute rights, in violation of
15 U.S.C. §§ 1692e, 1692e(10), 1692g, and 1692g(b). The court
never certified the proposed class. Instead, the court granted
RTR’s Rule 12(b)(6) motion to dismiss, denied O’Boyle’s Rule
59(e) motion to reconsider, and declined to give O’Boyle leave
to amend her complaint. She appeals.
III. Analysis
A. Dismissal
1. Standards
We review de novo the dismissal of a complaint for failure
to state a claim, accepting O’Boyle’s factual allegations as true
and drawing all permissible inferences in her favor. West Bend
Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016).
To survive a motion to dismiss for failure to state a claim,
No. 18-1936 5
O’Boyle must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Whether a debt-collection letter is confusing
is generally a fact question that, if well pleaded, survives a
Rule 12(b)(6) motion. Zemeckis v. Glob. Credit & Collection
Corp., 679 F.3d 632, 636 (7th Cir. 2012). But if it is “apparent
from a reading of the letter that not even a significant fraction
of the population would be misled by it,” then plaintiff fails
to state a claim and dismissal is appropriate. Id. (citing Taylor
v. Cavalry Inv., 365 F.3d 572, 574 (7th Cir. 2004)).
2. FDCPA
Here is what the FDCPA says: “A debt collector may not
use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15
U.S.C. § 1692e.
Section 1692e(10) prohibits a debt collector from using
“any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information
concerning a consumer.” Id. § 1692e(10).
Section 1692g requires debt collectors to notify consumers
of their validation rights:
(a) Notice of debt; contents
Within five days after the initial communication
with a consumer in connection with the
collection of any debt, a debt collector shall,
unless the following information is contained in
the initial communication or the consumer has
paid the debt, send the consumer a written
notice containing—
6 No. 18-1936
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is
owed;
(3) a statement that unless the consumer, within
thirty days after receipt of the notice, disputes
the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer notifies the
debt collector in writing within the thirty-day
period that the debt, or any portion thereof, is
disputed, the debt collector will obtain
verification of the debt or a copy of a judgment
against the consumer and a copy of such
verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s
written request within the thirty-day period, the
debt collector will provide the consumer with
the name and address of the original creditor, if
different from the current creditor.
(b) Disputed debts
… Any collection activities and communication
during the 30-day period may not overshadow
or be inconsistent with the disclosure of the
consumer’s right to dispute the debt or request
the name and address of the original creditor.
Id. § 1692g.
No. 18-1936 7
Here is what the FDCPA does not say. The FDCPA does
not say a debt collector must put the validation notice on the
first page of a letter. Nor does the FDCPA say the first page of
a debt-collection letter must point to the validation notice if it
is not on the first page. Nor does the FDCPA say a debt
collector must tell a consumer the validation notice is
important. Nor does the FDCPA say a debt collector may not
tell a consumer that other information is important.
Rather, the statute in general terms forbids a debt collector
from using “any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” Id. § 1692e. The statute requires a debt collector to
give the consumer the validation notice. Id. § 1692g. The
statute forbids a debt collector from overshadowing the
disclosure and from engaging in communication inconsistent
with the disclosure. Id. § 1692g(b). “Overshadowing” means
obscuring, Muha v. Encore Receivable Mgmt., 558 F.3d 623, 629
(7th Cir. 2009), or confusing, Bartlett v. Heibl, 128 F.3d 497, 500
(7th Cir. 1997). “Overshadowing” can be literal, Olson v. Risk
Mgmt. Alts., 366 F.3d 509, 512 (7th Cir. 2004); Bartlett, 128 F.3d
at 500 (fine print, faint print, or confusing typeface), or
metaphorical. 1
Although the word “confusing” does not appear in the
applicable statutory text, we have interpreted the FDCPA to
prohibit confusing presentations: “The validation notice
required by the FDCPA must be presented in a nonconfusing
1 Congress amended § 1692g(b) in 2006 to add “overshadow.” But as
we noted in Zemeckis, this amendment codified a rule courts had already
instituted. 679 F.3d at 635 n.1. So cases decided before the 2006
amendments continue to illuminate “overshadow.”
8 No. 18-1936
manner.” Sims v. GC Servs., 445 F.3d 959, 963 (7th Cir. 2006)
(citing Bartlett, 128 F.3d at 500). A debt collector must present
the notice “clearly enough that the recipient is likely to
understand it.” See Chuway v. Nat’l Action Fin. Servs., 362 F.3d
944, 948 (7th Cir. 2004) (citing Bartlett, 128 F.3d at 500–01).
3. Unsophisticated consumer
The controlling standard for determining whether this
letter violates the FDCPA as claimed is the “unsophisticated
consumer.” Dunbar v. Kohn Law Firm, 896 F.3d 762, 764 (7th
Cir. 2018). The hypothetical unsophisticated consumer is
uninformed, naïve, and trusting, but has rudimentary
knowledge about the financial world. Boucher v. Fin. Sys. of
Green Bay, 880 F.3d 362, 366 (7th Cir. 2018). Though not fully
wise (the very root of “unsophisticated”) he is wise enough to
read collection letters with added care. Id. He is reasonably
intelligent and can make basic logical deductions and
inferences. Id. Stew in ridiculous circular logic he does not,
because he is “reasonable.” St. John v. Cach, LLC, 822 F.3d 388,
390 (7th Cir. 2016). He is not the village idiot or a “dimwit.”
Wahl v. Midland Credit Mgmt., 556 F.3d 643, 645 (7th Cir. 2009).
We rejected the “least sophisticated consumer” standard
chartered by other circuits. Gammon v. GC Servs., 27 F.3d 1254,
1257 (7th Cir. 1994) (“It strikes us [as] virtually impossible to
analyze a debt collection letter based on the reasonable
interpretations of the least sophisticated consumer.”)
Instead, we ask whether someone of modest education
and limited commercial savvy would likely be deceived by
the letter. Dunbar, 896 F.3d at 764. We reject bizarre,
idiosyncratic interpretations. Id. at 765. We ask whether the
letter “could well confuse a substantial number of recipients.”
Taylor, 365 F.3d at 575. Under this standard, a letter might be
No. 18-1936 9
literally true, but still misleading or confusing. Dunbar, 896
F.3d at 765. Or a letter might be technically false, but not
misleading or confusing. Evans v. Portfolio Recovery Assocs.,
889 F.3d 337, 349 (7th Cir. 2018). This standard is objective;
whether the letter actually misled, deceived, or confused
O’Boyle herself is not dispositive. Lox v. CDA, Ltd., 689 F.3d
818, 826 (7th Cir. 2012) (“[T]he unsophisticated consumer test
is ‘an objective one’ … meaning that it is unimportant whether
the individual that actually received a violative letter was
misled or deceived.”). Also, whether RTR intended to
mislead, deceive, or confuse is not dispositive.
4. Discussion
O’Boyle argues the district court erred in holding RTR did
not overshadow the validation notice by referring her to
“important information” on “the back of this page” but
providing the validation notice on a separate sheet instead.
We disagree with O’Boyle. As a matter of law, RTR did not
overshadow the validation notice by putting it on page two
when page one refers to “important information” on its back,
but there gives various notices other than the validation
notice. To the contrary, the validation notice appears in clear,
readily readable font near the top of page two. Even an
unsophisticated consumer—maybe especially one—can be
expected to read page two of a two-page collection letter.
Even if seeing the reference to “important information” on
the back of page one, flipping there, and scanning it imposes
a speed bump before the validation notice, it is only a slight
speed bump, not a road barrier. After all, the reverse of page
one begins by saying it is not a complete list of all rights
consumers might have under federal law. And the top of page
two immediately presents the required validation notice.
10 No. 18-1936
O’Boyle’s briefing sometimes makes it seem RTR’s
validation notice arrived as a separate, random, easily lost
insert. Not so. The notice appears at the top of page two,
which looks for all the world like a continuation of the letter
because it is a continuation of the letter. It bears a signature
block for RTR. It includes the pagination “2 of 2.” It is
reasonable and fair to expect an unsophisticated consumer to
read the second page of a debt-collection letter and see this
notice. The district court correctly concluded a consumer
reading RTR’s letter with “added care” would “undoubtedly
see and comprehend the validation notice.” (Order, No. 17-C-
0957, DE 16 at 5.) A consumer who reads the front page,
follows the direction to see the reverse side, and scans
through that side all the way down to the pedestrian
Wisconsin-specific notice toward the bottom is sophisticated
enough to see and understand the validation notice toward
the top of page two of two. Or as the district court put it, “a
consumer who reads the front and back of the first page of a
short letter and then completely disregards the second page
has not read the letter with care.” (Id.)
O’Boyle attempts to show RTR violated a bright-line rule.
She claims this Court “has indicated” an initial collection
letter lacking the validation notice on the first page must
clearly and unambiguously direct the consumer to the
validation notice’s location. She cites Zemeckis, 679 F.3d at 637,
and Sims, 445 F.3d at 964, for this supposed rule. If this were
the rule, then O’Boyle would win. But it is not the rule, and
neither case she cites established such a rule.
In Sims, two consumers each received a dunning letter. At
the “bottom of the front page” came this warning: “‘NOTICE:
SEE REVERSE SIDE FOR IMPORTANT CONSUMER
No. 18-1936 11
INFORMATION.’” Sims, 445 F.3d at 961. The validation
notice came “on the reverse side of the demand letters” in
gray ink. Id. We affirmed summary judgment for defendants,
concluding: “Though the validation notice text on the back is
more difficult to read than the text on the front, it is
adequately readable and noticeable when combined with the
attention called to it on the front of the letter.” Id. at 964. But
we stopped far short of declaring a bright-line rule that
collection letters lacking the validation notice on the first page
must clearly and unambiguously direct consumers to the
validation notice’s location, despite O’Boyle’s contention.
In Zemeckis, we faced a nearly identical issue. A debt
collector sent a dunning letter to a consumer. The front of the
letter warned, in all capital letters, that the consumer should
“‘see [the] reverse side for important information.’” Zemeckis,
679 F.3d at 637 (alteration in Zemeckis). The validation notice
was “on the back of the letter.” Id. We upheld dismissal for
failure to state a claim, concluding that “locating the
validation notice on the back of the letter, while undesireable,
does not engender confusion sufficient to state a claim under
the FDCPA.” Id. But again, we did not come close to
establishing any sort of bright-line rule that collection letters
lacking the validation notice on the first page must direct
consumers to the validation notice’s location.
O’Boyle has not pointed us to anything in the FDCPA, the
Supreme Court’s decisions, or our decisions establishing the
bright-line rule she proffers. Nor could we find any such rule.
This is probably because even an unsophisticated consumer—
maybe especially one—can be expected to read this entire
collection letter, including page two. See Boucher, 880 F.3d at
366 (“The unsophisticated consumer is … wise enough to
12 No. 18-1936
read collection notices with added care … .”). Indeed, at some
point, multiple warnings on the front of a two-sheet letter
about where to flip and what is important would themselves
confuse and overshadow, and might push the text onto a
fourth side. Cf. Moss v. Trane U.S., No. 13-cv-42-bbc, 2016 WL
916435, at *7 (W.D. Wis. 2016) (In the product-liability context:
“Perversely, the confusion associated with multiple,
potentially inconsistent, warnings might cause more harm
than having too few warnings.”).
The validation notice in this case is arguably more
prominent than those we held sufficient in Sims and Zemeckis.
There, the letters carried the notices on their backs. But here,
the notice comes toward the top of the front of the letter’s
second page. In any event, the letter here objectively did not
overshadow the validation notice or otherwise engender
confusion or misunderstandings about it as alleged. O’Boyle
claims RTR buried the validation notice. If so, the notice is an
incorrupt corpse in an above-ground glass casket.
As for whether RTR implied the validation notice is
unimportant by calling other information important, RTR has
not implied this. The notice has a prominent place in the letter.
The reference on the front of page one to its back is not a
reference to “the only important information,” but is
explicitly a reference to “additional important information.”
And the back of page one leads with the warning that it is not
a complete list of rights. Besides, the FDCPA does not require
a debt collector to tell the consumer the validation notice is
important. The FDCPA merely requires a debt collector to
provide the validation notice in a manner that is not false,
deceptive, misleading, confusing, overshadowed, or
inconsistent.
No. 18-1936 13
It is apparent from reading the letter that not even a
significant fraction of the population would be misled by it as
claimed. We therefore conclude the district court properly
dismissed O’Boyle’s complaint.
B. Amendment
1. Denial of leave to amend
When it dismissed the complaint, the district court also
entered judgment without allowing O’Boyle to amend her
complaint. O’Boyle filed a post-judgment motion seeking
leave to amend to add new facts and theories supporting her
original claim and to add entirely new claims. The proposed
amendments (as presented in the post-judgment briefing
below and in the appellate briefing) bleed across the line
distinguishing the old claim from the proposed new claims.
The district court entered an order explaining it dismissed
the complaint and entered judgment without allowing an
opportunity to amend because any amendment would be
futile. Amending would be futile, the court reasoned, because
the dismissal was due to the failure of O’Boyle’s legal theory,
not any failure to plead facts necessary to support that theory.
The court turned to the new allegations in the post-trial
motion and treated them as attempts to assert new claims. The
court noted O’Boyle was trying to assert these new claims
based on parts of the letter she had not previously challenged,
and was trying to change her original legal theory. But the
court determined O’Boyle had shown no good reason for
waiting so long to assert these new claims, which were based
on the same letter she attached to her original complaint and
which did not rely on new legal authority. She had no excuse
for waiting so long. The court concluded that allowing
14 No. 18-1936
amendment following O’Boyle’s post-dismissal motion
would cause undue delay, which would unfairly prejudice
RTR and waste the court’s time and effort.
2. Standards
O’Boyle argues the court erred in denying her leave to
amend her complaint. Generally, “a plaintiff whose original
complaint has been dismissed under Rule 12(b)(6) should be
given at least one opportunity to try to amend her complaint
before the entire action is dismissed.” Runnion v. Girl Scouts of
Greater Chicago, 786 F.3d 510 at 519 (7th Cir. 2015). Rule
15(a)(2) provides that after the period for amendment as a
matter of course expires, the court should “freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2).
We generally review denial of leave to amend for abuse of
discretion. Huon v. Denton, 841 F.3d 733, 745 (7th Cir. 2016);
Runnion, 786 F.3d at 524. When plaintiff has had no prior
chance to amend, our review for abuse of discretion becomes
more rigorous. Runnion, 786 F.3d at 519. But when reviewing
the denial of leave to amend based on futility, we apply de
novo the legal-sufficiency standard of Rule 12(b)(6) to
determine if the proposed amended complaint fails to state a
claim. Naperville Smart Meter Awareness v. City of Naperville,
900 F.3d 521, 525 (7th Cir. 2018); Runnion, 786 F.3d at 524.
“Unless it is certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted, the
district court should grant leave to amend after granting a
motion to dismiss.” Barry Aviation v. Land O’Lakes Mun.
Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004).
No. 18-1936 15
3. Original claim
As noted, the court concluded that amending to try to save
the original complaint would have been futile. We review this
decision de novo, considering O’Boyle’s arguments below,
echoed on appeal. We agree with the district court. Applying
Rule 12(b)(6)’s legal-sufficiency standard, we conclude none
of the proposed amendments would push O’Boyle’s original
claim across the threshold of plausibility.
O’Boyle offers a litany of proposed amendments she
argues would support her original claim, including: 1) the
first page is so confusing it would intimidate the debtor into
paying; 2) this confusion overshadows the validation notice
and can be independently false, deceptive, or misleading; 3)
the letter is false and misleading; and 4) RTR “violated the
FDCPA simply by providing its phone number without
adequately advising the unsophisticated consumer that she
must dispute the debt in writing to require the debt collector
to verify the debt.” 2 She also proposes additional
amendments to raise new claims, and seems to argue these
amendments would also support her original claim.
But no proposed amendment pushes O’Boyle’s original
claim into the realm of plausibility. The original claim is that
the letter misleads the unsophisticated consumer by telling
him important information is on the back but instead putting
2 O’Boyle raised this phone-number problem below, but she did not
specifically raise it on appeal until oral arguments. Therefore she forfeited
it. To compound the problem, she was not clear whether she intended this
new proposed allegation only to support her original claim or whether she
intended this new allegation also to be a separate claim. But even without
forfeiture, the denial of leave to add this allegation would survive de novo
review and abuse-of-discretion review.
16 No. 18-1936
the validation notice on the front of the second page, thereby
overshadowing the validation notice and violating the
FDCPA. But even accepting all O’Boyle’s factual allegations
(original and proposed) as true and drawing all permissible
inferences in her favor, the original claim still fails. The letter
in no way actually alleged or proposed to be alleged
overshadows the notice or causes confusion about the dispute
rights under the unsophisticated consumer standard.
4. Proposed new claims
O’Boyle also offers a host of proposed amendments that
would raise new, additional claims based on the same letter.
The court denied leave to add these claims on the grounds of
undue delay and prejudice. We rigorously review this
decision for abuse of discretion.
As the court noted, O’Boyle sought leave to amend to
assert new claims based on parts of the letter she did not
challenge either in her original complaint or in her brief
opposing the motion to dismiss. O’Boyle did not seek leave to
amend her complaint in response to the motion to dismiss.
She did not inform the court in her brief opposing the motion
to dismiss that she intended to raise new factual allegations
to support her original claim or that she intended to raise
altogether new claims. She first requested leave to amend in
her post-judgment motion. She offered no good reason below
for waiting until then, and she offers no good reason on
appeal. Nowhere does she argue she did not discover the
factual or legal basis for her new claims until after dismissal.
Neither the letter nor the letter of the law materially changed.
The court was within its discretion in finding undue delay.
No. 18-1936 17
The court turned to an analysis of prejudice. If O’Boyle
had sought leave to bring new claims and theories in response
to the motion to dismiss, the court noted, it could have
granted her leave and denied the motion to dismiss as moot,
thereby saving RTR the expense of filing a reply in support of
its motion and sparing the judicial resources spent deciding
the motion. The court acknowledged RTR likely would have
filed a new motion to dismiss attacking the amended
complaint, but observed that the parties and the court in that
event could have addressed all claims and theories in a single,
efficient round. The court noted allowing O’Boyle to present
her claims “in piecemeal fashion” would force the court to
attend to this case twice over several months and relearn basic
facts and legal principles. It would force the court to write two
opinions resolving motions to dismiss instead of one. The
court allowed that a good reason for delay might justify the
prejudice, but noted O’Boyle offered no reason at all. The
court was within its discretion in finding prejudice.
In sum, none of O’Boyle’s proposed amendments,
construed broadly and in her favor, push the original claim
into the realm of plausibility. Therefore, denial of leave to
amend to bolster the original claim was properly grounded
on futility. And the district court was within its discretion in
denying O’Boyle leave to amend her complaint to raise new
claims, given undue delay and unfair prejudice.
IV. Conclusion
We AFFIRM dismissal and denial of leave to amend.