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Debt Collector Wrongdoing; the Unsophisticated Consumer Standard

On Behalf of | Oct 21, 2014 | Uncategorized

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Consumers should understand that before they prosecute a claim against a debt collector that the court will likely apply the “unsophisticated consumer” standard to adjudicate the claim.  A summary of that standard follows, complete with citations to case law.

Congress created the Fair Debt Collection Practices Act (“FDCPA”) in order to stop the “use of abusive, deceptive, and unfair debt collection practices by many debt collectors.”  15 U.S.C. § 1692a (2006).  The FDCPA is interpreted broadly in accordance with its remedial purpose. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006); Hamilton v. United Healthcare of La., 310 F.3d 385, 392 (5th Cir.2002); Picht v. Hawks, 77 F. Supp. 2d 1041, 1043 (D. Minn. 1999), aff’d, 236 F.3d 446 (8th Cir. 2001).  Because the FDCPA is a remedial statute, it is construed liberally in favor of the debtor.  Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002).

Under the FDCPA, the court must assess the deceptive, misleading or confusing nature of collection activity from the perspective of an “unsophisticated consumer.”  McCafferty v. Schwartzkopf Law Office, No. 4:10 CV 1401RWS, 2011 WL 4916382, *2 (E.D. Mo. Oct. 17, 2011); Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001); Chuway v. Nat’l Action Fin. Servs., Inc., 362 F.3d 944, 948–49 (7th Cir. 2004).  This “unsophisticated consumer” is assumed to be “uninformed, naïve, or trusting,” and would be confused or misled if a “significant fraction” of people would be similarly misled.  Chuway, 362 F.3d at 949.  Under the “unsophisticated consumer” standard, a court may grant summary judgment when collection activity “on its face violates the [FDCPA]… even in the absence of extrinsic evidence.”  Bode v. Encore Receivables Mgmt., Inc., No. 05-CV-1013, 2007 WL 2493898, at *4 (E.D. Wis. Aug. 30, 2007).

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