New Jersey Judges Change Their Minds on 1692g Written Dispute Issues: One Case Dismissed, Another Certified for Interlocutory Appeal

Last week, the District of New Jersey issued two decisions on the written dispute requirement issue specifically where the validation notice language tracks the statutory language found in the Fair Debt Collection Practices Act (FDCPA).

In one case, Bencosme v. Caine & Weiner, No. 18-cv-7990 (D.N.J. Mar. 6, 2019), Judge Arleo granted the defendant’s motion to dismiss, finding that the validation notice language is clear about the writing requirement and that a generic invitation to call does not overshadow the written requirement. In the second case, Cadillo v. Stoneleigh Recovery Associates, LLC, No. 17-cv-7472 (D.N.J. Mar. 8, 2019), Judge Wigenton found that the validation notice language does confuse the consumer about whether or not a dispute must be in writing but also certified the opinion for interlocutory appeal.

Editor’s Note: Typically, appeals occur after a final order is issued that fully disposes of the case, such as granting summary judgment or the findings after trial. Some court decisions, such as a denial of a motion to dismiss or denial of a motion for summary judgment, do not dispose of the case but a party may desire to appeal such order. An interlocutory appeal is the appeal of a non-dispositive court decision, procedurally requiring the judge to certify the particular order for an interlocutory appeal.

Bencosme Case

In the Bencosme case, the letter in question included a validation notice that tracks the statutory language of the FDCPA. Immediately after the validation notice paragraph, the letter states “To speak to us directly, contact us at [phone number.]” In her decision, Judge Arleo mentioned the myriad cases that have found the statutory validation notice language sufficiently describes the consumer's rights. The judge also noted that the remainder of the letter’s content and form did not cause any issues. The inclusion of a telephone number with nothing else does not overshadow the written requirement for disputes as outlined in the validation language.

This decision comes as somewhat of a surprise considering Judge Arleo ruled in the opposite direction back in September in her decision denying a similar motion to dismiss in Poplin v. Chase Receivables, Inc., No. 18-cv-404 (D.N.J. Sept. 26, 2018). In that decision, the judge cited the Cadillo decision denying a motion to dismiss (discussed below) and found that that the inclusion of the word “if” in the validation language itself as well as an invitation to call in the letter was sufficient for plaintiff to state a claim and warrant denial of the motion to dismiss.

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Cadillo Case

The Cadillo decision comes less as a shock since Judge Wigenton denied the defendant’s motion to dismiss the case on similar grounds back in 2017. Specifically, the judge took issue with the word “if” in the statutory validation notice language (“if you notify this office in writing.”). The word “if,” according to the judge, implies that there is another way to dispute the debt.

The judge, however, her tune regarding an interlocutory appeal. Judge Wigenton denied certification for interlocutory appeal of her order denying Stoneleigh's motion to dismiss two years ago. However, her new decision denying Stoneleigh’s summary judgment motion recognizes that district courts are ruling differently on the matter and that there is no Third Circuit authority on the issue and certies the order for an interlocutory appeal.

insideARM Perspective

It’s hard to see straight with all of the twists and turns occurring within the Third Circuit on this whole written dispute issue.

To start with, the Third Circuit seems to be the lone ranger that believes there is a written requirement in all disputes under 1692g. An open letter to the Consumer Financial Protection Bureau discusses the difficulties posed by this. The first case to pose this issue to the U.S. Supreme Court had its petition to be heard denied.

Next, the District of New Jersey and the Eastern District of Pennsylvania cannot seem to agree about whether or not a validation notice that tracks the language of 1692g is confusing as to dispute procedures. Over the past year, many cases have been decided in different directions on the issue.

Now, we have judges slowly changing their minds on the issue. The trend in these two new decisions seems to favor the defendants and it shows the benefit of defending these types of claims.

Amid all of this mess, there seems to be one group that is benefitting most from this uncertainty.