Kalebaugh v. Berman & Rabin, P.A., 2:13-cv-02288

Ray and Kalebaugh each owed Citibank balances and were pursued by Berman & Rabin to collect the debts.
Letters dated June 6, 2012 (Ray) and October 4, 2012 (Kalebaugh) stated a balance plus 'attorney fees (where applicable)' with language that the exact amount would be determined later.
Berman & Rabin filed suits on behalf of Citibank to obtain judgments and attorneys’ fees; Ray’s case resulted in a stipulated judgment on February 14, 2013.
The disputed issue is whether the collection letters state the debt amount as required by the FDCPA (15 U.S.C. § 1692g(a)(1)).
The court uses a least sophisticated consumer standard to evaluate FDCPA claims and considers the letters as a matter of law on summary judgment.
Cross-motions for summary judgment were brought; the court resolves them with partial grants and denials, and refers the matter for scheduling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the letters state the amount of the debt as required.	Ray and Kalebaugh contend the balance included uncertain attorney’s fees, failing to state total debt.	Letters indicate the amount due and note potential attorney’s fees, arguing the total could be determined later.	The court grants in part that the letters do not state the amount of the debt as of the date sent.
Whether the inclusion of potential attorney’s fees in the balance violates 1692e(2)(A).	Including 'attorney’s fees (where applicable)' misstates the debt’s amount.	Potential attorney’s fees could be recoverable; thus no false representation.	The court finds a violation of 1692e(2)(A).
Whether the letters violated 1692e(5) by threatening actions not legally permissible or not intended.	Inclusion of future attorney’s fees constitutes a threat to collect unawarded damages.	Filing lawsuits to collect the debt and fees confirms the intended action when appropriate.	The court finds no violation of 1692e(5).

Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, LLC, 214 F.3d 872 (7th Cir. 2000) (requires state the total debt, not just unpaid principal)
Veach v. Sheeks, 316 F.3d 690 (7th Cir. 2003) (attorney’s fees cannot be included in the debt amount prior to judgment)
Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769 (7th Cir. 2007) (assesses whether 1692e claims are questions of law or fact under the least sophisticated standard)
Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997) (recognizes the least sophisticated consumer standard in FDCPA cases)
Kuehn v. Cadle Co., Inc., 335 Fed. App’x 827 (11th Cir. 2009) (whether 1692e claims are questions of law or fact varies; not always for jury)