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PostPosted: Sat Jul 29, 2006 6:36 am 
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Debtor confusion about FDCPA verification rights is question of fact not subject to dismissal for failure to state claim
Law Reporter, May 2000
Walker v. National Recovery, Inc., - EM -, No. 992119, 1999 WL 1257386 (7th Cir. Dec. 21, 1999).

The Seventh Circuit Court of Appeals held that a debtor's claim of confusion about her verification rights under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692-16920, is a question of fact that is not subject to dismissal for failure to state a claim upon which relief may be granted.

Here, Walker received a debt collection letter. The letter stated that her account had been placed with the debt collection agency for immediate collection. The letter further said that she had 30 days to request verification of the debt.

Walker instituted a class action suit against the agency, alleging that it violated the FDCPA by confusing her about her verification rights under the act. The trial court dismissed the claim, stating that there was no possibility of confusion as a matter of law and, thus, no question of fact for a jury.

Reversing, the Seventh Circuit noted that a debtor's alleged confusion about her verification rights under the FDCPA is a question of fact that may not be dismissed under Fed. R. Civ. P. 12(b)(6). Consequently, a judge may not dismiss such a complaint because he or she believes proof will not be forthcoming. A judge-a legally sophisticated reader-is not a good proxy for an unsophisticated consumer, the court reasoned. The court noted that, to an unsophisticated person, a combination of a demand for prompt action with a notice that the debtor has 30 days to seek verification may produce "befuddlement." Thus, the court said, to determine the effect a debt collection notice has on a reader, the judge may need to hear evidence on the issue.


Accordingly, the court remanded.


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