The U.S. Court of Appeals for the First Circuit held that a collection letter sent by an attorney violated the Fair Debt Collection Practices Act (FDCPA) because it would lead a “hypothetical unsophisticated consumer” to believe that the consumer could not forestall a lawsuit by disputing the debt and could only do so by paying the debt. The court issued its decision in Pollard v. Law Office of Mandy L. Spaulding on September 8, 2014.

FDCPA Section 1692g(b) provides that during the 30-day period following a consumer’s receipt of a validation notice during which the consumer can dispute a debt, a debt collector’s communications “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.” It also requires a debt collector who receives such a written dispute or request during the 30-day period to cease collection efforts pending verification of the debt or provision of the requested information. However, Section 1692g(b) also expressly provides that, in the absence of such a dispute or request, “[c]ollection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period.”

Before reaching the merits of the plaintiff’s FDCPA claim, the First Circuit considered two preliminary issues: whether the plaintiff had Article III standing and from whose perspective a collection letter should be viewed for FDCPA purposes. Consistent with other circuit court decisions holding that a showing of actual harm is not required to establish Article III standing to sue for violations of various consumer protection statutes, the First Circuit ruled that the plaintiff did not have to show that she was actually confused by the collection letter to have such standing to bring an FDCPA claim. Noting that it had not previously considered whose perspective should be used to analyze an FDCPA claim, the First Circuit held that a collection letter should be viewed from the perspective of a “hypothetical unsophisticated consumer.” (In so ruling, the court relied on Eighth and Seventh Circuit decisions.)

The collection letter received by the plaintiff contained a validation notice making the disclosures required by FDCPA Section 1692g(a), including a disclosure regarding the consumer’s right to dispute the debt within 30 days. However, in language described by the court as “hopelessly scrambled syntax,” the letter also stated that “we further inform you that despite the fact that you have a thirty (30) day period to dispute the debt may not preclude the filing of legal action against you prior to the expiration of the period.” The attorney also stated in the letter that she was “not inclined to use further resources attempting to collect this debt before filing suit” and was “obligated to [her] client to pursue the next logical course of action without delay.”

While acknowledging that the FDCPA does not prohibit a debt collector from filing a lawsuit during the 30-day period, the First Circuit found that the effect of the letter’s statements, and the fact that it was sent by an attorney on law firm stationery, could confuse an unsophisticated consumer. According to the First Circuit, the letter violated Section 1692g because it could lead such a consumer to believe that a lawsuit could proceed even if the consumer disputed the debt and could only be avoided by paying the debt. To avoid this confusion, the letter would have to state that a timely dispute would require the suspension of all collection efforts, including any lawsuit.

In a dissenting opinion, Judge Bobby R. Baldock (of the 10th Circuit sitting by designation) observed that FDCPA Section 1692g does not mention a debt collector’s “use of a law firm letterhead” or a “lawyer’s signature,” and the majority did not cite any case law on point as support for its decision “despite an abundance of Section 1692g cases.” He also observed that the additional sentence in the letter’s validation notice regarding the filing of a lawsuit despite the consumer’s right to dispute the debt merely set forth what the FDCPA allows, namely that the consumer has 30 days to dispute the debt and the collector can still sue within that time frame.

Attorneys in Ballard Spahr’s Consumer Financial Services Group regularly advise clients on compliance with the FDCPA and state debt collection laws, defend clients in FDCPA lawsuits and enforcement matters, and represent clients commenting on regulatory proposals. They are also preparing clients for CFPB examinations. The Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance.

For more information, please contact Practice Leader Alan S. Kaplinsky at 215.864.8544 or, John L. Culhane, Jr., at 215.864.8535 or, or Collection Documentation Task Force Chair Christopher J. Willis at 678.420.9436 or


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