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Fields, Jodi v. Wilber Law Firm, 03-4108 (2004)

Court: Court of Appeals for the Seventh Circuit Number: 03-4108 Visitors: 12
Judges: Per Curiam
Filed: Sep. 02, 2004
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 03-4108 JODI FIELDS, Plaintiff-Appellant, v. WILBER LAW FIRM, P.C., a dissolved corporation, and DONALD L. WILBER and KENNETH WILBER, doing business as WILBER LAW FIRM, P.C., a dissolved corporation, Defendants-Appellees. _ Appeal from the United States District Court for the Central District of Illinois. No. 03 C 1079—Michael M. Mihm, Judge. _ ARGUED MAY 27, 2004—DECIDED SEPTEMBER 2, 2004 _ Before FLAUM, Chief Judge, and MANION
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                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-4108
JODI FIELDS,
                                            Plaintiff-Appellant,
                               v.

WILBER LAW FIRM, P.C., a dissolved
corporation, and DONALD L. WILBER
and KENNETH WILBER, doing business
as WILBER LAW FIRM, P.C., a dissolved
corporation,
                                         Defendants-Appellees.

                         ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
            No. 03 C 1079—Michael M. Mihm, Judge.
                         ____________
    ARGUED MAY 27, 2004—DECIDED SEPTEMBER 2, 2004
                     ____________



  Before FLAUM, Chief Judge, and MANION and KANNE,
Circuit Judges.
  KANNE, Circuit Judge. On March 16, 2002, Jodi Fields
incurred $122.06 in charges at Kruger Animal Hospital in
Bloomington, Illinois. Despite signing an agreement prom-
ising to pay the bill at a later time, Fields had not yet paid
any of the debt by November of 2002. Kruger hired the
Wilber Law Firm to collect the debt. On November 6, a dun-
2                                                 No. 03-4108

ning letter, signed by Donald Wilber of the Wilber Law
Firm (collectively “Wilber”), was sent to Fields; it stated
that the “ACCOUNT BALANCE” was $388.54. The account
balance reflected the original $122.06, plus interest and
service charges assessed pursuant to the contract signed by
Fields, plus $250 in attorneys’ fees for the collection of the
debt by Wilber. Three more letters followed, each letter
including a slightly higher “ACCOUNT BALANCE” to re-
flect the accumulation of interest. The subsequent letters
were sent on December 11, 2002 ($391.34), December 27,
2002 ($392.30), and February 7, 2003 ($395.30). No addi-
tional attorneys’ fees were sought in the later letters.
  Wilber included the $250 in fees pursuant to a clause in
the contract that stated: “I understand that if collection
action should become necessary for recovery of any monies
due under this contract, I agree to pay any and all collection
costs and attorney fees.” The collection letters did not
itemize the expenses or explain the amount of the debt in
any way.
  On March 25, 2003, Fields filed an action in federal court,
alleging that Wilber violated the Fair Debt Collection Prac-
tices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”). Specifically,
Fields asserted that the collection letters failed to accurately
state the amount of the debt under § 1692g(a)(1), were
misleading under § 1692e, and unfairly attempted to collect
unauthorized fees under § 1692f(1). The district court
dismissed Fields’s FDCPA claims for failure to state a claim
and held that $250 in attorneys’ fees was reasonable as a
matter of law. For the reasons that follow, we affirm in part
and reverse in part.


                         I. Analysis
  We review the district court’s decision to dismiss Fields’s
claims de novo, “accepting the well-pleaded allegations in
the complaint as true and drawing all reasonable inferences
No. 03-4108                                                   3

in favor of the plaintiff.” Marshall-Mosby v. Corporate Receiv-
ables, Inc., 
205 F.3d 323
, 326 (7th Cir. 2000).
  In deciding whether the collection letters violate the
FDCPA, we examine them from the standpoint of an unsophi-
sticated consumer. See Veach v. Sheeks, 
316 F.3d 690
, 692
(7th Cir. 2003); Bartlett v. Heibl, 
128 F.3d 497
, 500 (7th Cir.
1997). “This assumes that the debtor is uninformed, naive, or
trusting[.]” 
Veach, 316 F.3d at 693
(internal quotations
omitted). However, an unsophisticated consumer possesses
“rudimentary knowledge about the financial world” and is
“capable of making basic logical deductions and inferences.”
Pettit v. Retrieval Masters Creditors Bureau, Inc., 
211 F.3d 1057
, 1060 (7th Cir. 2000).


A. The Amount of the Debt under 15 U.S.C. § 1692g(a)
  Under the FDCPA, “[w]ithin five days after the initial com-
munication with a consumer in connection with the collec-
tion of any debt, a debt collector shall . . . send the con-
sumer a written notice containing—(1) the amount of the
debt[.]” 15 U.S.C. § 1692g(a). Fields first contends that
Wilber, by unilaterally determining $250 to be the amount
of attorneys’ fees charged, misstated the actual amount of
the debt. Fields does not deny that she owes some reasonable
attorneys’ fees under the contract. But barring a stipulation to
a specific liquidated amount in the original debtor-creditor
contract, Fields proposes debt collectors should be required
to seek court approval for a specific amount of attorneys’
fees before including them in the account balance.
  Essentially, Fields asks us to endorse an approach that
would require every debt collector under the FDCPA to go
to court every time it sought to enforce a provision in a pay-
ment agreement signed by the debtor that allows reim-
bursement of attorneys’ fees and collection costs. Plainly
stated, the statute does not require such an extraordinary
result.
4                                                  No. 03-4108

   Nor, contrary to Fields’s protestations, does our case law. In
Veach, an individual (Veach) who had no contractual rela-
tionship with the creditor attempted to prevent the reposses-
sion of his debtor-friend’s automobile by sending a check for
$350 to the 
creditor. 316 F.3d at 691
. The creditor repossessed
the auto despite this payment, and Veach responded by
stopping payment on the check. 
Id. The creditor
responded
to Veach’s action by hiring an attorney to file suit. The at-
torney sent Veach a written notice that listed the remaining
principal balance as $1050 (reflecting treble damages under
an Indiana statute), “plus reasonable attorney fees as
permitted by law, and costs if allowed by the court.” 
Id. at 692.
  We held that the attorney violated § 1692g(a)(1) by stating
the amount of the debt as an estimate of future potential
liability in a court action rather than as a statement of the
current amount of the debt. 
Id. at 692-93.
The debt collector
“took it upon himself to hold Veach liable for [statutory]
penalties that had not yet been awarded, penalties that for
FDCPA purposes should have been separated from the
amount of the debt.” 
Id. at 692.
“[T]he ‘amount of the debt’
provision is designed to inform the debtor (who, remember,
has a low level of sophistication) of what the obligation is,
not what the final, worst-case scenario could be.” 
Id. at 693
(emphasis in original).
  The case before us today differs significantly from Veach.
Here, based on a written, signed contract, Wilber attempted
to collect an undisputed debt amount, an undisputed amount
in interest, and an amount in attorneys’ fees (incurred in
the initiation of Wilber’s collection attempts), disputed for
its reasonableness only. Some attorneys’ fees have already
been incurred in this case and are contractually owed to
Kruger, the hospital that provided unpaid veterinary services
to Fields. Whereas in Veach, the attorneys’ fees (along with
the treble damages and court costs also included in the dun-
ning letter) could only be determined in litigation pursuant
to a state statute.
No. 03-4108                                                  5

  To collect attorneys’ fees from Fields, Wilber necessarily
had to specify an amount that it intended to charge (or had
already charged) for its services. Fields, of course, could ne-
gotiate this payment or contest the reasonableness of the
fees through a lawsuit. But when a debtor has contractually
agreed to pay attorneys’ fees and collection costs, a debt
collector may, without a court’s permission, state those fees
and costs and include that amount in the dunning letter.
Doing so does not violate the FDCPA. Indeed, refusing to
quantify an amount that the debt collector is trying to
collect could be construed as falsely stating the amount of
debt. See Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, and Clark, L.L.C., 
214 F.3d 872
, 875-76 (7th Cir.
2000) (letter required the consumer to call a toll-free
number to determine the full amount of the debt). The
district court correctly determined that no claim for relief
was stated under 15 U.S.C. § 1692g(a).


B. 15 U.S.C. § 1692e and 15 U.S.C. § 1692f
  Even if attorneys’ fees are authorized by contract, as in
this case, and even if the fees are reasonable, debt collectors
must still clearly and fairly communicate information about
the amount of the debt to debtors. This includes how the
total amount due was determined if the demand for pay-
ment includes add-on expenses like attorneys’ fees or
collection costs.
  “A debt collector may not use any false, deceptive, or mis-
leading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. As an example of
such conduct, § 1692e(2)(A) states that it is a violation to
falsely represent “the character, amount, or legal status of
any debt[.]” Section 1692f states that “[a] debt collector may
not use unfair or unconscionable means to collect or
attempt to collect any debt.”
6                                                No. 03-4108

  We conclude that Fields has made allegations sufficient
to state a claim under § 1692e and § 1692f and a dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6) was in-
appropriate because the letters could conceivably mislead
an unsophisticated consumer.
  In the original dunning letter, Wilber listed an account
balance that exceeded the principal obligation by $266.48.
Wilber’s fees were more than double the original obligation,
$122.06. Nowhere did Wilber explain that it was seeking
attorneys’ fees of $250. Fields received the initial dunning
letter almost eight months after she incurred the charges at
the veterinary hospital.
  An unsophisticated consumer could reasonably wonder why
her bill was now $388.54, even assuming she had saved the
original contract that specified she could be charged for
attorneys’ fees. It would be difficult for such a consumer to
understand how a relatively modest fee for services ren-
dered had tripled in size. Cf. Johnson v. Revenue Mgmt.
Corp., 
169 F.3d 1057
, 1060 (7th Cir. 1999) (“Unsophisticated
readers may require more explanation than do federal judges;
what seems pellucid to a judge, a legally sophisticated reader,
may be opaque to someone whose formal education ended
after sixth grade.”).
  Or, an unsophisticated consumer may have lost the bill
and forgotten the amount of the debt completely. In this
circumstance, the debtor (or the debtor’s spouse, or someone
else paying bills for the debtor) might logically assume that
she simply incurred nearly $400 in charges. By leaving the
door open for this assumption to be made, Wilber’s letter
was misleading because it gave a false impression of the
character of the debt. It is unfair to consumers under the
FDCPA to hide the true character of the debt, thereby
impairing their ability to knowledgeably assess the validity
of the debt. One simple way to comply with § 1692e and
§ 1692f in this regard would be to itemize the various
charges that comprise the total amount of the debt.
No. 03-4108                                                  7

  The district court agreed that the dunning letter in this
case was facially misleading. But we are forced to disagree
with the district court’s determination that the letters’ mis-
leading nature was irrelevant as a matter of law because
Fields could reference the contract from Kruger Animal
Hospital or because she could telephone Wilber and ask for
an explanation.
  As we noted above, even if she saved her contract from
nearly eight months earlier, the unsophisticated consumer
would not necessarily understand that Wilber was seeking
$250 in attorneys’ fees, an amount allowed, but not spe-
cified, by the contract. Furthermore, in 
Miller, 214 F.3d at 875-76
, we rejected the proposition that a debt collector
could provide incomplete information in a dunning letter so
long as it provided a telephone number for the debtor to
call. “It is notorious that trying to get through to an 800
number is often a vexing and protracted undertaking, and
anyway, unless the number is recorded, to authorize debt
collectors to comply orally would be an invitation to just the
sort of fraudulent and coercive tactics in debt collection that
the Act aimed (rightly or wrongly) to put an end to.” 
Miller, 214 F.3d at 875
. Wilber did not satisfy all of its FDCPA
obligations by including a telephone number on the dunning
letter.


                      II. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
determination that Fields did not state a claim for relief
under 15 U.S.C. § 1692g(a). We REVERSE the district court’s
dismissal of Fields’s remaining claims under 15 U.S.C.
§§ 1692e and 1692f, and REMAND for proceedings consistent
with this opinion.
8                                        No. 03-4108

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—9-2-04

Source:  CourtListener

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