The statute of limitations in Indiana for enforcing delinquent debts is six years from the date of the last activity. Ind. Code ยง 34-11-2-9; Holt v. LVNV Funding, LLC, 147 F.Supp.3d 756, 760 (S.D. Ind. 2015). However, sending a letter in an "attempt to collect a stale debt does not, in and of itself, violate the FDCPA."
District courts have taken varying positions on whether and when a plaintiff has stated a plausible FDCPA claim that a debt collector defendant has misrepresented the legal status of a debt in a letter which includes this "disclaimer." Compare Richardson v. LVNV Funding, LLC, No. 16 C 9600, 2017 WL 4921971, at *1 (N.D. Ill. Oct. 31, 2017) (finding that use of the words "will not" as opposed to "cannot" is itself sufficient to mislead a consumer although letter did not use term "settle") and Collopy v. Dynamic Recovery Solutions, LLC, No. 16 C 6667, 2017 WL 1321118, at *2 (N.D. Ill. Apr. 4, 2017) (same) with Gunther v. Midland Credit Mgmt., No. 2:17-cv-704, 2018 WL 4621764, at *8 (D. Utah Sept. 26, 2018) (concluding that "the letter's language providing 'we will not sue' instead of 'cannot sue,' when considered together with the letter's offer to save Ms. Gunther money, is also plausibly misleading.") and Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 760-61 (S.D. Ind. 2015) (concluding that plaintiff had stated plausible Section 1692e claim despite letter's use of disclaimer because the letter continued to use the term "liability," which could be misleading to consumers) with Miran, 2017 WL 1410296, at *1, 6 (no plausible FDPCA violation for letter using the disclaimer language); Judah v. Total Card, Inc., No. 16-5881, 2017 WL 2345636, at *5 (D.N.J. May 30, 2017) (expressly finding that letter offering to settle a debt was not deceptive based on the disclaimer " [b]ecause this language has been endorsed by the CFPB and the FTC"); Genova v. Total Card, Inc., 193 F. Supp. 3d 360, 367-68 (D.N.J. 2016) (referencing Buchanan and noting that "the plain language of the Letter's disclaimer informing Plaintiff that the statute of limitations had expired and that MBC would not sue himโthe same language endorsed by the FTC and CFPBโdemonstrates that Defendant did not misrepresent the legal status of the MCB Debt in the Letter. "); Filgueiras v. Portfolio Recovery A
Neither party directs specific arguments to ยง 1692e or ยง 1692f, and courts in the Seventh Circuit have recognized that these provisions "are not mutually exclusive." Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 763 (S.D. Ind. 2015). As the parties do not distinguish between the provisions, the Court will treat the parties' arguments as applying with equal force to each of the Complaint's counts, which allege claims under each provision.
Aside from showing that the Seventh Circuit hasn't adopted Waypoint's interpretation, Ms. Johnson doesn't offer any argument or analysis for why Waypoint's approach is wrong, making the same mistake the defendants made in a case she cites. Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 762 (S.D. Ind. 2015) ("Unfortunately, Defendants fail to provide any substantive analysis on this argument [about duplicative claims].... Defendants make no effort to provide the reasoning of these district courts, much less explain why this court should hold otherwise.").
ery Solutions, LLC, No. 2:19-cv-00135-DCN, 2019 WL 2368460, at *4 (D.S.C. June 5, 2019) (โThe court concludes that the Letter's โwill not sue' language is not misleading and does not violate the FDCPA.โ); Jones v. Synergetic Commc'n, Inc., No. 18-CV-1860-BAS-RBB, 2018 WL 6062414, at *7 (S.D. Cal. Nov. 20, 2018) (โin the context of this case, the โwill not sue' language could not plausibly mislead the least sophisticated consumerโ); Contreras v. Portfolio Recovery Assocs., LLC, No. CV 19-06969 PA (AGRx), 2020 WL 204114, at *4-5 (C.D. Cal. Jan. 10, 2020); Swann v. Dynamic Recovery Sols., LLC, No. 4:18-CV-1000-VEH, 2018 WL 6198997, at *11-12 (N.D. Ala. Nov. 28, 2018); but see Richardson v. LVNV Funding, LLC, No. 16 C 9600, 2017 WL 4921971, at *1 (N.D. Ill. Oct. 31, 2017) (determining that the language โwill not, โ rather than โcannotโ is alone sufficient to mislead a consumer); Holt v. LVNV Funding, LLC, 147 F.Supp.3d 756, 760-61 (S.D. Ind. 2015). Notably, the Eleventh Circuit has suggested that it would approve of the use of such language in debt-collection letters.
See Wilson v. A&K Rock Drilling, Inc., No. 2:16-CV-739, 2017 WL 2422800, at *3-4 (S.D. Ohio June 5, 2017) (discussing the limitations periods applicable, pre- and post-September 28, 2012). See also Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 760 (S.D. Ind. 2015) ("Plaintiff cannot be sued on the debt, and no credit reporting agency can list the debt as delinquent. Critically though, this does not mean that Plaintiff's debt magically disappeared . . . ."). Moreover, regardless of the status of Plaintiff's debt, Plaintiff has failed to allege that he is without an adequate state remedy to address his alleged deprivation of property without procedural due process.
It is reasonable to do the same when interpreting the plain meaning of language as an unsophisticated consumer would understand it. See, e.g., Wahl, 556 F.3d at 646 (considering definition provided in the American Heritage Dictionary to determine the meaning of "principal" in deciding FDCPA claim). In fact, it is more likely an unsophisticated consumer would seek clarification from more readily available online resources such as Google or Wikipedia, if any. See, e.g., McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1021 (7th Cir. 2014) (recognizing in FDCPA case that "[i]f a consumer received an 'offer for settlement' and searched on Google to see what is meant by 'settlement,' she might find the Wikipedia entry for 'settlement offer'"); Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 761 (S.D. Ind. 2015) (considering Google definition of "liability" after expressing skepticism as to whether an unsophisticated consumer would look to the Cambridge English Dictionary for clarity) (citing McMahon, 744 F.3d at 1021). If an unsophisticated consumer conducted a Google search for "procedure," the top three definitions provided would be: (1) "an established or official way of doing something," (2) "a series of actions conducted in a certain order or manner" and (3) "a surgical operation.
Plaintiff does not direct the court to any persuasive cases suggesting that the letter he received constitutes a threat of litigation. In each of the cases relied upon by plaintiff, the court addressed a collection letter containing language entirely distinct from the language presented here. See Buchanan v. Northland Group, Inc., 776 F.3d 393, 399 (6th Cir. 2015) (letter which referenced "settlement offer" could plausibly mislead consumer into believing that creditor could sue on time-barred debt); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1021 (7th Cir. 2014) (collection letter that offered to settle claim without litigation violated FDCPA where litigation on debt was time-barred); Holt v. LVNV Funding, LLC, 2015 WL 7721222, at *3 (S.D. Ind. Nov. 30, 2015) (letter offering "release of all liability" in exchange for "settlement" was sufficient to state claim for false representation because it suggested that the creditor could sue on a time-barred debt when, in fact, it could not lawfully do so). These cases, then, do not shed any light on the particular statement at issue here.
As such, "an action to recover a debt must be commenced within six years of the last payment." Holt v. LVNV Funding, LLC , 147 F.Supp.3d 756, 760 (S.D. Ind. 2015) (applying Indiana law and referencing I.C. ยง 34-11-29). Therefore, as Alialy ceased payment on the note on July 28, 2008, any cause of action filed after July 28, 2014 would be barred by the statute of limitations.