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“Now Due” does not mean “Past Due” under FDCPA

The plaintiff in Mollberg v. Advanced Call Center Technologies, Inc., No. 18-1210, 2019 WL 288128 (E.D.Wis. Jan. 22, 2019) received a letter from Advanced Call Center Technologies (which I’ll refer to as ACCT) that attempted to collect a debt owed to Synchrony Bank.  The letter said that the “Total Account Balance” was $1,113.00 and that the “Amount Now Due” was $234.00.  Even though the letter didn’t itemize it, the “Amount Now Due” was the sum of the amount past due (which was $160.00) and the monthly payment that was now due (which was $74.00).  A few weeks later Synchrony Bank sent a letter that laid all of that out, although it used the phrase “Amount Now Due” to refer to the past due balance alone.

The plaintiff sued ACCT alleging violations of the FDCPA and state law, and ACCT moved to dismiss.  The plaintiff contended that the letter violated the FDCPA in two ways:  first, that it included the current installment in the “amount of the debt,” which accord; and second, that the use of “Amount Now Due” in the letter could plausibly confuse or mislead the unsophisticated consumer as to the “character or legal status of the debt” by (1) causing them to think that the current installment is past due and (2) by contradicting Synchrony Bank’s use of that phrase to refer only to the past due amount.  The district court didn’t buy either argument; it granted ACCT’s motion to dismiss.

In doing so the court explained that under the FDCPA the phrase “amount of the debt” doesn’t have any talismanic, pigeon-holed meaning.  It is whatever amount the debt collector was attempting to collect.  In some cases, such as the Seventh Circuit’s decision in Barnes v. Advanced Call Center Technologies, 493 F.3d 838 (7th Cir. 2007), which the plaintiff relied on, that is just the “past due amount.”  But in this case ACCT was hired to collect both the past and present installment due.  So it didn’t matter that the letter included the current installment in the “amount of the debt.”

The district court also didn’t think much of the plaintiff’s argument that labeling the current installment and past due amounts in “Amount Now Due” would mislead the unsophisticated consumer into thinking that the current installment was past due.  The district court determined that the unsophisticated consumer would have a bit more of a common sense interpretation, and recognize that “Now Due” doesn’t mean everything is “Past Due.”  It chalked that argument up to the plaintiff’s misunderstanding of the word “Due.”  The plaintiff seemed to think that a “due date” was when a payment became “due” instead of “past due.”  At the time ACCT sent its letter, the current installment was in fact due, just not past due (like the rest of the “Amount Now Due”).  So ACCT was not, as the plaintiff claimed, attempting to collect a debt that was not yet due.

The court also rejected the plaintiff’s suggestion that the phrase “Amount Now Due” would be confusing in light of Synchrony Bank’s letters, which used the phrase “Amount Now Due” to refer only to the past due debt.  Both letters gave the same account balance and listed the same amount that the consumer was expected to pay for the time being.  And the FDCPA otherwise does not require a debt collector to tailor its communications in each case to match the terminology used by the creditor — which is essentially what the plaintiff’s argument suggested.