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Court of Appeal:
Debt Collection Agency Might Be Liable Based
On Typewritten Note Stapled to Summons
By a MetNews Staff Writer
A collection agency that stapled a typewritten note to a summons inviting the defendant to contact it might be liable under the Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act by creating the false impression that the advisement emanated from the court, the Sixth District Court of Appeal has held.
Its unpublished opinion was filed Tuesday. Justice Cynthia C. Lie authored it.
The note said:
“If you have any questions regarding this matter, please contact: Credit Consulting Services, Inc., 201 John Street, Suite E, Salinas, CA 93901, 831-424-0606; outside 831 area code 1-800-679-6888.”
The message was repeated in Spanish.
Trial Court Ruling
San Benito Superior Court Judge Robert O’Farrell granted summary judgment to Credit Consulting Services, Inc. (“CCS”) in the cross-action against it by the alleged debtor, Clifton James Scott. The judge found that even the least sophisticated consumer, upon being served with a summons and complaint, would not be apt to assume that the note came from the Superior Court.
The Court of Appeal reversed, holding that the note lacked a statutorily mandated disclosure that the communication was from a debt collector and a consumer might suppose the message to be an official advisory. Lie wrote:
“The attachment and its invitation to contact CCS with ‘any questions’ was stapled to the summons in a position that covered over the language on the summons specifying that ‘a...phone call will not protect you’ but left uncovered the court seal and the signature of the ‘Deputy’ who issued it. By omitting the mandatory disclosure that this attachment was from CCS, a debt collector, CCS made it reasonably likely that the least sophisticated consumer would believe the suggestion to call CCS was from the court that issued the summons to which the suggestion was affixed. CSS’s communication was therefore deceptive.”
‘Innocuous Note’
She added that “[w]e agree with CCS that an ‘innocuous note’ may be included with a summons and complaint,” but went on to say:
“[W]e do not agree that the attachment here is innocuous. On review of the served documents, it would be clear to the least sophisticated consumer that CCS sued them to collect the debt specified in the complaint and, per the attachment, that they had been instructed to contact CCS, the debt collector, with any questions about the lawsuit. Nothing about the past communications from CCS would have alerted the least sophisticated consumer that the unsigned note stapled to a court-issued summons was not likewise from the court. We do not think it appropriate to impute to the least sophisticated consumer sufficient familiarity with court documents or service of process to be able to discern that the attachment had been attached to the summons by CCS, rather than by the court issuing the summons.”
Reversing summary judgment in favor of CCS does not equate with directing that summary judgment be entered on remand in favor of Scott, Lie specified, saying that there are elements he needs to prove.
The case is Scott v. Credit Consulting Service, Inc., H049063.
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