No. The debt collector did not break the law. The court explained that even if a debt is too old to sue over, the debt doesn't just disappear; you still technically owe it. Since the debt is still real, asking for payment isn't a lie about its legal status. As long as the collector doesn't threaten to sue—which would be a lie because they can't—just sending a standard collection letter is perfectly legal.

No, it's not against the law. I decided that sending a notice about an old debt isn't wrong if the notice follows the rules and doesn't threaten to sue or take more action. Even though the debt is old, it still exists - it's just that the debt collector can't sue for it anymore. The notice followed all the rules about what it should say, so it's not misleading. Because the notice didn't threaten to sue or do anything else, didn't change the person's rights, and said everything it was supposed to say, I don't think it's misleading. So, I'm saying Capital One didn't do anything wrong.

<?xml version="1.0" encoding="utf-8"?>
<opinion type="majority">


 MEMORANDUM OPINION AND ORDER
 

<author id="b1398-22">
 CONWAY, Chief Judge.
 </author>

 THIS MATTER comes before the Court upon Capital One’s Motion for Judgment on the Pleadings, filed February 24, 2000
 
 (Doc. 24).
 
 This case is based on Plaintiffs claim that Capital One violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o by sending Plaintiff a debt validation notice for a debt which Capital One knew was time-barred by the statute of limitations. Specifically, Plaintiff alleges that Capital One violated 15 U.S.C. § 1692e(2)(A) which prohibits the false representation of the legal status of a debt. Capital One argues that dismissal of this suit is appropriate because Plaintiff cannot legally establish that Capital One violated the FDCPA by sending Plaintiff a debt validation notice which complies with 15 U.S.C. § 1692g.
 <a class="footnote" href="#fn1" id="fn1_ref">
 1
 </a>
 The Court notes that Capital One did not threaten Plaintiff with a lawsuit or even further collection action in its debt validation notice.
 

 A. Standard for Judgment on the Pleadings
 

 A motion for judgment on the pleadings pursuant to Fed. R. Crv. P. 12(c) is treated as a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
 
 Mock v. T.G. &amp; Y. Stores Co.,
 
 971 F.2d 522, 528 (10th Cir. 1992). Motions to dismiss are viewed with
 
 *1331
 
 disfavor and are therefore rarely granted. 5A Charles A. Wright
 
 &amp;
 
 Arthur R. Miller, Federal Practice And Procedure at § 1357 (2d ed.1990). The court may not grant a motion to dismiss under Rule 12(b)(6) unless the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.
 
 See Maez v. Mountain States Tel. &amp; Tel., Inc.,
 
 54 F.3d 1488, 1496 (10th Cir.1995). Furthermore, courts must accept all well-pled allegations as true,
 
 id.,
 
 and indulge all reasonable inferences in favor of the plaintiff.
 
 See Weatherhead v. Globe Int’l, Inc.,
 
 832 F.2d 1226, 1228 (10th Cir.1987). The issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his or her claims.
 
 Scheuer v. Rhodes,
 
 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court will consider Capital One’s motion for judgment on the pleadings in light of these standards.
 

 B. Discussion
 

 The issue in this case is simply whether a debt collector
 <a class="footnote" href="#fn2" id="fn2_ref">
 2
 </a>
 violates § 1692e(2)(A) by sending an otherwise legally sufficient debt validation notice
 <a class="footnote" href="#fn3" id="fn3_ref">
 3
 </a>
 to a debtor without notifying the debtor that the debt is time-barred by the statute of limitations. “Determination of whether a violation of the FDCPA has occurred involves a two-step process. First, the court must interpret the statute, if necessary. Second, there must be a determination of whether [the defendant] violated the statute as interpreted by the court.”
 
 Beattie v. D.M. Collections, Inc.,
 
 754 F.Supp. 383, 386 (D.Del.1991) (citation omitted).
 

 Section 1692e states in pertinent part that
 
<blockquote id="b1399-7">
 A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: ...
 </blockquote>
<blockquote id="b1399-12">
 (2) the false representation of—
 </blockquote>
<blockquote id="b1399-13">
 (A) the character, amount, or legal status of any debt....
 </blockquote>

 A plain reading of § 1692e(2)(A) leads the Court to conclude that the FDCPA is violated when a debt collector falsely represents the legal status of a debt. Common sense dictates that whether a debt is tiine-barred is directly related to the legal status of that debt. After all, if a debt cannot be pursued in court because it is time-barred, the debt collector’s ability to legally collect on the debt is limited. I, therefore, find that the legal status of a debt necessarily includes whether that debt is time-barred.
 

 Having determined that the legal status of a debt includes whether the debt is time-barred, the next issue is whether the debt validation notice is false, deceptive or misleading by not notifying Plaintiff that his debt was time-barred. The parties present two lines of cases to support their opposing views on whether the debt validation notice is false, deceptive or misleading. Plaintiff relies primarily on
 
 Stepney v. Outsourcing Solutions, Inc.,
 
 1997 WL 722972, 1997 U.S. Dist. LEXIS 18264 at *14 (N.D.Ill.1997), for the proposition that FDCPA claims premised on a debt collector’s knowing attempts to collect time-barred debts are viable.
 
 Stepney
 
 cites to
 
 Kimber v. Federal Fin. Corp.,
 
 668 F.Supp. 1480 (M.D.Ala.1987), and its progeny as authority for this proposition.
 
 Id. Stepney
 
 and
 
 Kimber,
 
 however, are distinguishable from this case because they both deal with situations where lawsuits were filed to collect the debts, lawsuits were threatened, or “further collection action” was threatened.
 
 Kimber's
 
 progeny as cited in
 
 Stepney
 
 are also distinguishable from this case.
 
 See Simmons v. Miller,
 
 970 F.Supp. 661, 664-65 (S.D.Ind.1997) (debt collector did not
 
 *1332
 
 knowingly file a time-barred suit);
 
 Martinez v. Albuquerque Collection Servs., Inc.,
 
 867 F.Supp. 1495, 1506 (D.N.M.1994) (question of fact as to whether debt collector ever contacted the plaintiff);
 
 Beattie v. D.M. Collections, Inc.,
 
 754 F.Supp. 383, 393 (D.Del.1991) (examining § 1692e(5), not § 1692e(2)(A)).
 


 Stepney
 
 has since been cited in two recent unpublished cases with respect to its discussion on time-barred debts. The most recent case is
 
 Wright v. Asset Acceptance Corp.,
 
 1999 U.S. Dist. LEXIS 20675 (S.D.Ohio 1999).
 
 Wright
 
 is also distinguishable from this case because the plaintiff there failed to allege .that the debt was time-barred. The second case is
 
 Taylor v. Unifund,
 
 1999 U.S. Dist. LEXIS 13651 (N.D.Ill.1999).
 
 Taylor
 
 is the most factually like this case in that the debt validation notice does not threaten a lawsuit or “further collection action.” As in this case,
 
 Taylor
 
 presents the straightforward issue of whether collection of a time-barred debt is deceptive as a matter of law. The judge in
 
 Taylor
 
 without discussion apparently extended
 
 Stepney
 
 and
 
 Kimber
 
 to find that a debtor engages in fraudulent misrepresentation by trying to collect a time-barred debt even if no lawsuit has been filed to collect the debt, or a lawsuit or further collection action threatened.
 

 Capital One’s primary case is
 
 Aronson v. Commercial Fin. Servs., Inc.,
 
 1997 WL 1038818 (W.D.Pa.).
 
 Aronson
 
 recognizes that
 
 Kimber
 
 stands for the proposition that “[a] threat to sue a consumer on a claim that the debt collector knows is barred by the statute of limitations violates section 1692e(2)(A) of the FDCPA.”
 
 Id.
 
 at *2. The debt collection letters in
 
 Aronson,
 
 however, did not threaten a lawsuit or further collection action.
 
 Id.
 
 at *1. The judge in
 
 Aronson
 
 found that the debt collection letters did not misrepresent the nature of the debt under § 1692e(2)(A) for three reasons, two of which are relevant to this case. First, the judge decided that the debts were indeed valid debts regardless of whether the statute of limitations precluded collection of those debts by judicial means..
 
 Id.
 
 at *3 (discussing Pennsylvania statute of limitations). “The statute of limitations foreclosed judicial remedies rather than eliminating the underlying rights.”
 
 Id.
 
 (citing among others
 
 Davis v. Mills,
 
 194 U.S. 451, 456, 24 S.Ct. 692, 48 L.Ed. 1067 (1904)). Second, the judge indicated that the debt collection letters properly tracked the language required by § 1692g and so were not misleading to a least sophisticated consumer.
 
 Id.
 


 The Court has before it two contrary positions represented by
 
 Taylor
 
 and
 
 Aron-son.
 
 I find that the position taken by
 
 Aronson
 
 is the better position for several reasons. To begin with,
 
 Aronson
 
 is factually similar to this case in that the debt collection letters in
 
 Aronson
 
 did not mention lawsuits or further collection action. Moreover, like the Pennsylvania law cited in
 
 Aronson,
 
 New Mexico courts have held that statutes of limitations are procedural in nature and merely bar judicial remedies by which a party seeks to enforce his or her substantive rights.
 
 See Gaston v. Hartzell,
 
 89 N.M. 217, 220, 549 P.2d 632, 635 (Ct.App.1976). Additionally, in accord with
 
 Aronson,
 
 other courts have held that “a debt validation notice which sets forth verbatim the mandatory language of section 1692g(a)(4) cannot be considered false, deceptive or misleading in violation of section 1692e....”
 
 Jang v. Miller &amp; Assocs., Inc.,
 
 1996 WL 435096 at *5 (N.D.Ill.1996).
 
 See also Dixon v. United Adjusters, Inc.,
 
 1981 U.S. Dist. LEXIS 18392 at *9 (D.Ore. 1981) (debt collection statement which truthfully informs plaintiff of debt owed “is an attempt to obtain voluntary compliance from plaintiff and is not deceptive”). Finally,
 
 Taylor
 
 should not be given much weight considering its lack of reasoning. Since the debt validation notice in this case does not threaten a lawsuit or any further collection action, fails to affect any substantive rights the debtor might have, and follows the language of § 1692g, I cannot find that as a matter of law it is deceptive. Capital One’s motion for judgment on the
 
 *1333
 
 pleadings is, therefore, well taken and will be granted.
 

 Wherefore,
 

 IT IS ORDERED that Capital One’s Motion for Judgment on the Pleadings, filed February 24, 2000
 
 (Doc. 2J+),
 
 is granted and this cause dismissed with prejudice.
 



<div class="footnotes"><div class="footnote" id="fn1" label="1">
<a class="footnote" href="#fn1_ref">
 1
 </a>

 . Section 1692g outlines what information must be included in a debt validation notice.
 
</div><div class="footnote" id="fn2" label="2">
<a class="footnote" href="#fn2_ref">
 2
 </a>

 . Capital One stales that for purposes of this motion on the pleadings it is considered a debt collector.
 
</div><div class="footnote" id="fn3" label="3">
<a class="footnote" href="#fn3_ref">
 3
 </a>

 . The parties agree that the debt validation notice complies with § 1692g.
 
</div></div></opinion>

No. A debt validation notice sent for a time-barred debt does not constitute a false representation of the debt's legal status under the FDCPA, so long as it does not threaten legal action. The court reasoned that a statute of limitations is procedural and only bars the judicial remedy (the ability to sue), but it does not extinguish the underlying substantive right to the debt itself. Therefore, because the debt still legally exists, a truthful statement requesting payment is not a false representation. Since Capital One's notice complied with the statutory requirements of § 1692g and did not threaten litigation, it was not false, deceptive, or misleading as a matter of law.

No. I find that sending a debt validation notice that complies with § 1692g for a time-barred debt does not violate the FDCPA, specifically § 1692e(2)(A), when the notice does not threaten legal action or further collection efforts. I reason that while the legal status of a debt includes whether it is time-barred, the notice in this case is not false, deceptive, or misleading. This is because statutes of limitations are procedural in nature and do not eliminate the underlying rights to the debt, but merely bar judicial remedies. Additionally, a notice that follows the language required by § 1692g cannot be considered misleading to the least sophisticated consumer. Because the debt validation notice in this case does not threaten a lawsuit or any further collection action, does not affect any substantive rights the debtor might have, and follows the language of § 1692g, I cannot find that as a matter of law it is deceptive. Therefore, Capital One's motion for judgment on the pleadings is granted.

Shorty v. Capital One Bank

Premium Feature

Rule of Law:

Facts:

Procedural Posture:

Premium Content

Issue:

Opinions:

Majority - Conway, Chief Judge

Analysis: