When dealing with an issue of debt collection abuse, the question isn’t so much one of whether you were the victim. Rather, the courts look to the least sophisticated person and ask if they would have fallen for it.
That’s right, you don’t need to have been confused, abused or victimized. In fact, you may have seen right through the charade of the debt collection agent. Doesn’t matter a lick.
The Fair Debt Collection Practices Act isn’t there to protect you, it’s there to protect the system. And to do so, the courts need to look at your claim of abuse through the lens of the public at large.
Who Is The Least Sophisticated Consumer?
Your idiot brother-in-law is not the least sophisticated consumer for the purposes of determining whether there has been abuse by the debt collection agent. Neither is it that dummy down the hall at work.
According to the court in Ellis v. Solomon and Solomon, PC, 591 F. 3d 130 (2nd Cir. 2010), “the hypothetical least sophisticated consumer does not have “the astuteness of a `Philadelphia lawyer’ or even the sophistication of the average, everyday, common consumer,” but is neither irrational nor a dolt.” Still, “even the least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993).
In other words, we’re talking about someone who’s pretty dumb but not illiterate.
The Least Sophisticated Consumer Gets Sued
We previously talked, at least a little, about the notion of overshadowing – those activities and communications that “overshadow” or “contradict” the required validation notice.
One example of how the least sophisticated consumer may come into play is when a debt collection agent send an initial validation notice at the same time as a lawsuit is served. You may not be confused by one letter giving you 30 days to dispute the validity of the debt that comes with a lawsuit – a document that seems to trumpt the letter – but the least sophisticated consumer would.
To prevent the chances of abuse in the debt collection process, the court in Goldman v. Cohen, 445 F.3d 152 (2d Cir.2006) said that a good workaround would be for the debt collector to send a notice such as the following:
This advice pertains to your dealings with me as a debt collector. It does not affect your dealings with the court, and in particular it does not change the time at which you must answer the complaint [or other legal pleading]. The summons is a command from the court, not from me, and you must follow its instructions even if you dispute the validity or amount of the debt. The advice in this letter also does not affect my relations with the court. As a lawyer, I may file papers in the suit according to the court’s rules and the judge’s instructions.
Always Remember – It’s Not You, It’s Him
The least sophisticated consumer is your ally in defending against debt collection abuse. He may be dumb as a sack of hammers but he’s got your back. Next time you’re contacted by a debt collector ask yourself WWLSCD?