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Dutton v. Wolpoff and Abramson

filed: September 7, 1993.

E. STEVEN DUTTON, APPELLEE
v.
WOLPOFF AND ABRAMSON, APPELLANT



Appeal from the United States District Court for the District of Delaware. (D.C. Civil Action No. 91-00577).

Present: Becker, Hutchinson and Weis, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant, the law firm of Wolpoff and Abramson (the "law firm"), appeals an order of the United States District Court for the District of Delaware. By that order, the district court entered judgment for statutory damages in favor of appellee, E. Steven Dutton ("Dutton"), on two claims under the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C.A. § 1692 (West 1982 & Supp. 1993).

The district court had subject matter jurisdiction over this case under 15 U.S.C.A. § 1692k (d) (West 1982). We have appellate jurisdiction over this appeal from the final order of the district court under 28 U.S.C.A. § 1291 (West Supp. 1993).

After denying the law firm's renewed Federal Rule of Civil Procedure 50 motion for a verdict as a matter of law, the district court granted judgment for Dutton as a matter of law on his claim that the law firm violated 15 U.S.C.A. § 1692e(11) (West 1982), a disclosure provision. On Dutton's claim that it violated 15 U.S.C.A. § 1692e(10) (West 1982), which prohibits misleading statements in debt collection communications, the court sent that question to the jury which decided in favor of Dutton.

On the subsection (11) disclosure claim, the law firm contends that the entry of judgment as a matter of law for Dutton was contrary to Congress's intent in enacting that section of the statute. The law firm relies on an FTC opinion letter and a judicial decision concerning the application of subsection (11)'s disclosure provisions to a debt collector's follow-up letters. On the subsection (11) non-disclosure claim, the plain language of the FDCPA ultimately constrains us to affirm.

On Dutton's subsection (10) claim, the law firm asserts that the district court erred in not entering a verdict for it as a matter of law because Dutton had failed to show that the settlement letters were misleading. There is indeed no evidence that Dutton, the actual plaintiff, was misled, but the decisive issue on that claim is whether the settlement letters could have misled the hypothetical consumer that Congress enacted the statute to protect. On that issue, we think the potential effect of the law firm's letter was for the jury.

I.

Sometime before March 1989, Dutton became delinquent on debts evidenced by two separate accounts he owed to Macy's Northeast, Inc. ("Macy's"). Macy's retained the Wolpoff and Abramson law firm to collect these debts. On March 16, 1989, and March 27, 1989, the law firm sent Dutton separate collection letters on each account. The letters were identical and, on the reverse side, contained a full disclosure statement in accord with FDCPA requirements.

Dutton failed to pay and the law firm filed suit on Macy's behalf in the Court of Common Pleas for New Castle County, Delaware on each delinquent account. Dutton did not respond and the state court entered a default judgment against him. On November 1, 1990, with the debts still unpaid, the law firm sent Dutton two identical "settlement letters." They offered to settle the debts the accounts evidenced for fifty percent of the balance claimed. After reciting the account numbers and the balance due each letter stated:

Dear Sir/Madam:

Christmas comes early from Macys. Our records show a judgment was entered against you for the above sum (which includes principle, [sic] interest, court costs and attorney fees if applicaple [sic]).

Our client has allowed us to accept a one time settlement of 1/2 of the above balance. This offer is good for 30 DAYS ONLY from the date of this letter. When the payment is received, we will release all liens and mark the judgment as Paid and Satisfied.

If you have any questions, please feel free to call our office. We have enclosed an envelope with our new ...


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