The United States District Court for the Eastern District of New York recently dismissed an action against a debt collector under the Fair Debt Collection Practices Act (“FDCPA”) because the debt collector had used safe harbor language approved by the Second Circuit.  See Taubenfliegel v. United Collection Bureau, Inc., 2019 WL 1934519 (E.D.N.Y. May 1, 2019).  In the case, the debt collector sent a debt collection letter to plaintiff that set forth the balance due as of the date of the letter.  It further stated:  “Because of interest and/or 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 your payment is received. For further information, you may write to our office or call the telephone number within this communication.”  Plaintiff brought this action under the FDCPA, claiming that the letter “omits information allowing the least sophisticated consumer to determine the minimum amount he or she owes at the time of the notice, what he or she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase.”  The debt collector moved to dismiss the action.

The Court granted the debt collector’s motion.  In Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark L.L.C., 214 F.3d 872, 876 (7th Cir. 2000), the Seventh Circuit provided safe harbor language that would satisfy the debt collector’s duty to provide the amount due in a situation in which the amount varies from day to day:

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 Second Circuit has adopted this safe harbor language.  See, e.g., Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 242 (2d Cir. 2019).  Because the debt collector used this language in the collection letter at issue, the Court found that the letter did not violate the FDCPA and that this action should be dismissed.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Dylan Goetsch at dgoetsch@riker.com.