An example of what courts consider overshadowing

[quote]Dear Carl P. Chauncey,
Please be advised that we have been requested by [Bridgestone/ Firestone] to assist
them in the collection of the amounts due set forth above. Unless we receive a check or money order for the balance, in full, within thirty (30) days from receipt
of this letter, a decision to pursue other avenues to collect the amount due will be
made.
Unless you notify this office within thirty (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 thirty (30) days from
receiving this notice that you dispute the debt or any portion of it, this office will
obtain verification of the debt or obtain a copy of the judgment and mail you a
copy of such judgment or verification. If you request this office in writing within
thirty (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.
This is an attempt to collect on this debt. Any information obtained will be used
for that purpose.
You may contact Ms. Mackenzie at (800) 793-3369 if you have any questions or if
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you would like to discuss this matter further.
Please include the above JDR number on the outside of your remittance envelope
to insure proper credit. We trust your prompt response will make any further
collection activities unnecessary. In the event we do not hear from you within the
next thirty (30) days, further collection activities will be pursued to the extent
permitted by law.
The Court of Appeals agreed that "the thirty-day payment requirement set out in
the [first paragraph of the] collection letter contradicts the mandatory validation notice
disclosures allowing thirty days to dispute the debt." It explained:
The statement in the first paragraph of defendant's letter -- "Unless we receive a
check or money order for the balance, in full, within thirty (30) days from receipt
of this letter, a decision to pursue other avenues to collect the amount due will be
made" -- contradicts the language in the letter explaining the plaintiff's validation
rights under the FDCPA, which allows plaintiff 30 days in which to dispute the
debt and request verification. We believe that the contradictions in the letter, as in
Avila, would leave an unsophisticated consumer confused as to what his rights are
and therefore violate the FDCPA.
Defendant argues that the letter contains no contradiction because plaintiff is given
the same amount of time to pay as to contest the debt (i.e., "within thirty (30)
days"). But the letter required that plaintiff's payment be received within the
30-day period, thus requiring plaintiff to mail the payment prior to the thirtieth day
to comply. In contrast, subparagraphs (3) and (4) of §1692g(a) give the consumer
thirty days after receipt of the notice to dispute the validity of a debt. It is clear that
Mr. Chauncey had the full thirty days to send his notification to defendant.
Nothing in Section 1692g requires, and we have found no other court decision
which has required, that the debt collector must receive notice of the dispute
within thirty days as defendant insists. . . .
In Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997). defendants' letter threatened
legal action within the 30-day validation period by demanding that the debtor make payment
within one week or other suitable arrangements. The letter also contained a paraphrase of §
1692g's language. Even though the letter did not misstate either parties' legal rights, the Seventh
Circuit found that the letter was confusing and violated § 1692g because it contained the
seemingly contradictory statements that the debtor had 30 days to verify his debt and that he
could also be sued in one week.
The Bartlett court concluded, by way of an exemplary "safe harbor" letter, that if a
debt collector threatens suit or demands action of the debtor within the 30-day validation period,
it should also provide the debtor with a full explanation of the relationship between the creditor's
right to sue and the debtor's right to verification, namely, that if the debtor disputes the debt and
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requests verification all collection efforts must be halted until verification if provided. A very
similar solution was endorsed by the Second Circuit in Savino v Computer Credit, Inc., 164 F.3d
81 (2d Cir. 1998).
Debt collectors using the "safe harbor" letter need to adhere to it strictly. The
reference to suit within 30 days may not be used without the explanation that exercise of
verification rights will halt the collection process. Freys v. Satter, Beyer & Spires, 1999 U.S.Dist.
LEXIS 6912 (N.D.Ill., April 30, 1999). Also, the reference to 30 days should specify "after
receipt."
In Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057 (7th Cir. 1999), the Seventh
Circuit held that two letters could be found to violate §1692g, if they in fact increased consumer
confusion. Both letters contained a paraphrase of the statutory notice. The letter to Lenora
Johnson added:
If you fail to make prompt payment we will have no alternative but to proceed with
collection, which may include referring this account for legal action or reporting
this delinquency to the credit bureau.
Should you wish to discuss this matter, contact our office and ask for extension
772.
The letter to Brendt Wollert added:
The above account has been placed with our firm for payment in full. Call our
office immediately upon receipt of this letter. Our toll free number is
1-800-521-3236.
The Johnson court stated that survey or similar evidence may be necessary to establish that the
quoted statements in fact increased consumer confusion as to their §1692g rights.
Any language suggesting that action within 30 days is necessary, may create a
§1692g problem. Seplak v. IMBS, Inc., 1999 U.S. Dist. LEXIS 2106 (N.D.Ill. Feb. 23, 1999).
[/quote]
This is an example that defines the term "overshadowing". This is when your rights determine one action and the letter from the collection agency conflict with your rights. Enjoy! :D