Gradisher v. Check Enforcement

[David A. Szwak]

Gradisher v. Check Enforcement Unit, Inc.
210 F.Supp.2d 907
W.D.Mich.,2002.
April 05, 2002

A. Failure to Provide Validation Notice

[4] Pursuant to 15 U.S.C. § 1692g, a debt collector must provide a notice to the debtor within five days after the initial communication, unless the notice is contained in the initial communication, stating the following:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a). A debt collector violates the FDCPA by failing to provide the validation notice to a debtor. Edwards v. McCormick, 136 F.Supp.2d 795, 802-03 (S.D.Ohio 2001); Altergott v. Modern Collection Techniques, Inc., No. 93 C 4312, 1994 WL 319229, at *2 (N.D.Ill. June 23, 1994).
[5] [6] Gradisher contends that CEU failed to provide the required validation notice in the Due Process Notice. CEU admits that the Due Process Notice did not contain the exact language required by the statute but contends that it did contain much of the information required, such as the amount of the debt, the name of the creditor, and a telephone number and address*913 which Gradisher could use to contact CEU if she wished to dispute the debt. Even if the least sophisticated consumer could have ascertained the amount of the debt and the name of the creditor, the Due Process Notice did not contain the information required in § 1692g(a)(3)-(5). Specifically, the Due Process Notice does not state that the debtor may dispute the validity of the debt by notifying the debt collector in writing within thirty days after receipt of the Due Process Notice, nor does it state that upon written request by the debtor within the thirty-day period, the debt collector will obtain verification of the debt. CEU has failed to cite any case holding that a notice containing similar deficiencies still passes muster under the FDCPA. Therefore, Gradisher is entitled to summary judgment on this claim.FN2

FN2. Even if the Due Process Notice contained the information required by § 1692g(a)(3)-(5), including the notice of the debtor's right to dispute the debt within thirty days, the court would still hold that the validation was overshadowed or contradicted by the Final Notice, sent fifteen days after the Due Process Notice. See Withers v. Eveland, 988 F.Supp. 942, 947 (E.D.Va.1997). The Final Notice would have confused even the most sophisticated consumer because the language “You have failed to respond to the notice sent to you by the Law Enforcement Processing Center. You are now in violation of criminal law,â€