Donna T. TAYLOR, individually and on behalf of all others similarly situated v. CAVALRY INVESTMENT, L.L.C.; Doug A. Schletz, et al., on behalf of themselves and all others similarly situated v. Academy Collection Service, Inc.
Nos. 02-2509, 03-2578, 03-2588, 03-2590
United States Court of Appeals, Seventh Circuit
April 22, 2004
Rehearing and Rehearing En Banc Denied May 25, 2004
365 F.3d 572
TERENCE T. EVANS, Circuit Judge.
Argued March 31, 2004.
In our March 2, 2004, decision resolving this case, we reprimanded attorney Lisa A. Hoffman for failing to include, in an appendix to her main brief (or in a separate appendix), the opinion of the Appellate Court of Illinois which was the centerpiece of this appeal. Including that opinion in the brief was required by Circuit Rule 30. Our decision went on to ask attorney Hoffman to show cause “why she should not be fined $1,000 ....” She has filed a timely response to our order.
The brief that we questioned was filed on November 25, 2002, during the tenure of the former attorney general of Illinois. For that reason, in addition to the response from Ms. Hoffman, a response has been filed by Lisa Madigan, the new attorney general of Illinois. After reviewing the two submissions, we discharge, for the reasons that follow, the order to show cause without imposing a fine.
An intent to deceive the court is not a precondition to imposing a monetary sanction against an attorney for violating Rule 30, but its absence is certainly a factor we consider, along with others, in deciding how best to proceed. In that regard, we are convinced that Ms. Hoffman did not willfully omit including the Illinois Appellate Court opinion from her brief. The fact that the omission was not willful also means, of course, that it didn‘t occur for any deceptive or strategic purpose.
Furthermore, we note that Ms. Hoffman has no record of violating court rules and has, in fact, performed capably in other cases. See Henderson v. Briley, 354 F.3d 907 (7th Cir.2004); Searcy v. Jaimet, 332 F.3d 1081 (7th Cir.2003); Terry v. Martin, 120 F.3d 661 (7th Cir.1997). We also note that in her career as a public lawyer (first as an assistant, later as a supervising attorney in the Criminal Appeals Division of the office of the Attorney General of Illinois, and now as a member of the staff of the DuPage County State‘s Attorney‘s Office) she has earned the respect of her colleagues and courtroom adversaries.1
For these reasons, we chalk up the violation of Rule 30 in this case to a simple mistake. Although our original opinion still stands as a public censure, a fine of $1,000, or some lesser amount, is not, in our view, necessary to make amends for Ms. Hoffman‘s error. The order to show cause is DISCHARGED.
William J. Harte, Joan M. Mannix (argued), Harte & Associates, Robert Cybak, Simpson & Cybak, Joseph E. Tighe, David M. Schultz, Peter Pederson (argued), Hinshaw & Culbertson, Chicago, IL, for Defendants-Appellees.
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge.
We have consolidated for decision the appeals from the dismissal of two closely related cases under the Fair Debt Collection Practices Act,
In the Schletz case, with which we begin, the defendant was hired to collect credit-card debt owed by the three plaintiffs. The defendant sent each of them a letter which sets forth the amounts of the “PRINCIPAL BAL,” “INTEREST OWING,” and “TOTAL BAL DUE.” So far, so good. But the letter goes on to say that “if applicable, your account may have or will accrue interest at a rate specified in your contractual agreement with the original creditor,” that is, the issuer of the credit card. The basis for the statement was that every day that the debt remained unpaid, the debtor would be accruing interest for which he might later be billed, as in fact happened with one of the plaintiffs. In the case of the other two plaintiffs, the creditors closed their accounts and upon doing so stopped adding interest, though presumably they could have continued doing so until the debts were paid. The plaintiffs argue that the statement confused them about the amount of the debt that the defendant was trying to collect, and they submitted affidavits to this effect to the district court, which nevertheless granted summary judgment for the defendant.
As we noted just the other day in Chuway, a dunning letter must state the amount of the debt sufficiently clearly that the recipient is unlikely to misunderstand it. See also Bartlett v. Heibl, 128 F.3d 497, 500-01 (7th Cir.1997); Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996); Terran v. Kaplan, 109 F.3d 1428, 1431-32 (9th Cir. 1997); Miller v. Payco-General American Credits, Inc., 943 F.2d 482, 483-84 (4th Cir.1991). And the benchmark is the understanding of unsophisticated debtors, who are frequent targets of debt collectors. But a debtor cannot create a triable issue just by submitting an affidavit in which he says that he misunderstood the dunning letter. If it is apparent from a reading of the letter that not even “a significant fraction of the population” would be misled by it—if as in White v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000), the interpretation attested to by the plaintiff is a “fantastic conjecture“—the
A judge might be mistaken in supposing that a letter that was clear to him was clear to unsophisticated debtors, however, and so it is open to a plaintiff, in any but the clearest case, to present objective evidence of confusion, for example the results of a consumer survey. Pettit v. Retrieval Masters Creditors Bureau, Inc., supra, 211 F.3d at 1061-62; Walker v. National Recovery, Inc., 200 F.3d 500, 502, 504 (7th Cir.1999); Johnson v. Revenue Management Corp., 169 F.3d 1057, 1060–61 (7th Cir.1999). That at least is the view of our court; other circuits disagree and think that whether a dunning letter is confusing is always a matter of law. E.g., Wilson v. Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir.2000). No matter. No survey was conducted here, leaving the plaintiffs’ affidavits as the sole, and insufficient, evidentiary basis for supposing that a statement entirely clear on its face is actually unclear.
The plaintiffs have an alternative claim that is downright frivolous—that the statement we quoted from the dunning letter is false, and so violated
In our other case, Taylor, the letter again clearly stated the principal balance, the interest due, and the total balance due, and the main claim is that the further statement that “your account balance may be periodically increased due to the addition of accrued interest or other charges as provided in your agreement with your creditor” is confusing. It is no more confusing than the statement in the Schletz letter. It is the clear statement of a truism.
In addition, however, the letter contains, after a sentence that gives a phone number that the debtor can call “to resolve your account,” the statement: “Act now to satisfy this debt.” Taylor contends that this injects confusion by obscuring (“overshadowing,” as many of the cases say) the debtor‘s statutory entitlement to a 30-day period in which to dispute the debt and by doing so to compel the debt collector to verify it. Bartlett v. Heibl, supra, 128 F.3d at 500-01; Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518-19 (7th Cir.1997); Avila v. Rubin, supra, 84 F.3d at 226; Miller v. Payco-General American Credits, Inc., supra, 943 F.2d at 484-85. Not so. The entitlement is clearly stated in the next paragraph of the letter.
“Act now to satisfy your debt” is in the nature of puffing, in the sense of rhetoric designed to create a mood rather than to convey concrete information or misinformation (“Buy Now!” “Best Deal Ever!” “We Will Not Be Undersold!“), as it is perfectly obvious to even the dimmest debtor that the debt collector would very much like him to pay the amount demanded straight off, sparing the debt collector
The only complication in Taylor‘s case is that the district judge dismissed the case on the pleadings, the only evidence before him being the dunning letter itself, which was attached to the complaint. However, both in his brief and at oral argument Taylor‘s counsel (the same counsel as in Schletz) made clear that the only evidence he would have wanted to present was an affidavit in which Taylor would say that he had been confused by the letter, a form of proof as unavailing in this case as in the other.
The judgments in both cases are therefore
AFFIRMED.