Consumer law can be difficult to parse out, not just for the average person,
but for courts as well. An appeals decision by a second circuit court
in the case of
Avila v. Riexinger & Associates is but one in a string of cases concerning the language and interpretation
of the Fair Debt Collection Practices Act (FDCPA). The decision provides
a glimpse at questionable tactics used by some collectors, and also reinforces
the importance of consumers protecting themselves from such practices.
Avila v. Riexinger & Associates
The case of Avila v. Riexinger was centered around the issuing of collection
letters, a common practice of creditors nationwide. Annmarie Avila’s
counsel claimed that letters she received from Riexinger & Associates
violated the FDCPA, specifically section 1692e. This section provides that
any attempts to collect debt must not be “false, deceptive, or misleading.” Avila’s counsel argued that the presentation of a “current
balance” on her collection letter was indeed misleading, because
it lacked any notice of the interest and fees that were accruing over
time. The initial judgment in District Court dismissed the charges,
acknowledging the fact that courts were split on whether debtors must disclose
interest and fees.
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Appeals Court: Analysis
In rendering their appeals decision, the Second Circuit court used what
they refer to as the
“least sophisticated consumer” standard. This means that when determining whether the collection letters were
misleading, they were examined through the eyes of a consumer who could
not be considered even as sophisticated as the average consumer. If this
less sophisticated consumer could read the letter and interpret it in
more than one reasonable manner, the court would rule that it was indeed
false and misleading. The Court ruled that because the letter could be
understood as saying that the consumer only owed the balance stated,
the letters were in violation of section 1692e. Furthermore, the Court held that for debtors to disclose the presence
of interest and fees would be most in line with the congressional intent
of protecting consumers rights.
Avila: Safe Harbor Language
When the district court made its initial decision in
Avila v. Riexinger, they stated concerns that requiring
debt collectors to disclose interest and fees may lead to more abusive practices. The
Second Circuit court agreed that this may become an issue, and as such
adopted what is known as a
“safe harbor” approach. A “safe harbor” is a legal provision that attempts
to reduce liability in certain situations or when certain conditions are met.
In the case of Avila v. Riexinger, the Second Circuit used “safe
harbor” to outline specific language to be used on debt collection
letters so that they are in compliance with section 1692e. The Court reiterated
a statement that appeared in the decision for Miller v. McCalla, Raymer,
Padrick, Cobb, Nichols, & Clark, L.L.C.
“As of the date of this letter, you owe $___ [the exact amount due].
Because of interest, late charges, and other charges that may vary from
day to day, the amount due on the day you pay may be greater. Hence, if
you pay the amount shown above, an adjustment may be necessary after we
receive your check, in which event we will inform you before depositing
the check for collection. For further information, write the undersigned
or call 1–800– [phone number].”
The Court further clarified that this “safe harbor” provision
does not mean that debt collectors must use this language specifically,
only that doing so would ensure compliance with the FDCPA.
Fair Debt Collection Lawyers
The case of Avila v. Riexinger & Associates demonstrates the monumental
importance of the Fair Debt Collection Practices Act. It is absolutely
crucial that those being sent collection letters remain vigilant about
the balances they owe and be aware of any abusive behavior by their debt
You may be entitled up to $1000 in statutory damages, plus actual damages,
and attorneys fees, if you are a victim of
debt collector abuse or any other fdcpa violation.
If you believe that your consumer rights have been violated by a debt collector,
contact the New York & New Jersey
Fair Debt Lawyers at the Law Office of Simon Goldenberg PLLC.
Call today to speak to a consumer lawyer -
Not legal advice, for informational purposes only. Not responsible for
typographical errors. Our law firm does not have any involvement or affiliation
to the case discussed in this article. We are headquartered in New York
City and we practice law only in NY and NJ. Contact us to learn more.