consumer credit protection act and there were claims under the f t c brought under sixteen ninety two which prohibits the use of false deceptive or misleading representations or means in connection with the collection of any debt and under the florida statute that was dismissed for a lack of the head injuries there and we would request that the court reverse and remand this action and vacate the district court's or to garnish your wages over this debt we are merely seeking voluntary payment from you imagine how that would change the interpretation that a consumer has when they receive a collection water like th seeking a debt that they haven't paid in the past the issue in this case is that the debt that they're seeking to collect is time bar it can't be enforced under florida law for it was a five year statute of limitations the debt in this case was charged off in two thousand and seven it was almost eight years past the well almost eight years at lawrence you are for sure it would be against the law you have a letter that says we will see you because of the status of the loan is that you can't see the statue of limitations has expired present the letter clearly suggest another step might be taken you know but doesn't say what it is but it says let us know by this date and so but could the other step also be you don't pay this amount of money we're going to keep keep writing your letters could that not be and then that would be totally legal would it not for them to continue  to request repayment of the debt without taking legal action would be legal to make more than one solicitation would it not well with respect your first question is it not plausible that they're just going to send more letters sure that's possible but you know when a collector goes and brings a lawsuit usually they send a letter before and not always but for the most for when you get a debt collection water or if you get sued you have received a collection waters in the past so it is a plausible interpretation of receiving this letter that the debt is judicially enforceable and that one consequence is that part of it if if they said clearly if you don't pay this letter we will continue to make solicitations urging you to to pay your debt unfair practice well that just because she thinks that we have something more than that if you can voluntarily collect a debt for which the statute of limitations expired is there anything about that permission that says you can't try more than one time well i don't think that continuing to pursue a person on a debt that they can't pay or that they can't be compelled to pay i don't think that's a fair practice under the f t c but again i think that is a separate question than whether the dismissal on twenty six here was erroneous isn't the real problem that the existence of another possible plausible interpretation of the letter such as the one that judge corns put doesn't do it given the standard that applies the standard this court has held is whether the least sophisticated consumer would have been deceived now wouldn't it be for the jury to decide whether the least sophisticated consumer faced with this letter would or w so the standard that has been adopted in numerous circuits is that what if there is a if there are more than one reasonable an interpretation and one of there's a reason one terp attentions that could be held by at least escape a consumer is false and the letters deceptive as a matter of water the f t c and therefore it is a fact question for the jury to decide whether it is whether it had the least sophisticated consumer an unsophisticated person could not necessarily would could think that this is legally enforceable and i think that's where the real issue comes up if if eight person reads this and thinks that they're going to be sued and that's not at a bizzarro bizarre or idiosyncratic whether they might think they're going to be sued and whether that's a reasonable interpretation and i'm going to explain why if you think it's a reasonable and not a bizarre interpretation first who would buy an unforeseeable that just the mere fact that you're getting a letter we pleaded that this was the initial communication and on the last page of the letter which has as it was filed it contains the initial g notices under six hundred ninety two g that if unless you just get within thirty days they'll presume it's valid so it was the now or at the very least some they've got a new collector on the case and maybe he's going to recommend that they seemed i have forgotten whether or not the complaint indicated or the letter how old the debt was yes so  means it's a bad debt so i understand that but the that it doesn't say when the debt the obligation was incurred well no but the obligation i'm not trying to argue with you i'm just trying to find out that the letter say when it argument then is the only letter that would suffice for which we could as a matter of law the letter is is not misleading will be a letter that said look we'd like you to pay this money we may still continue to ask you to pay this money  canon and already they all assume that fact to be true for the purposes of resolving the question at hand which was a twelve the six claim about deception of a deceptiveness or misleading nature of communication but i don't think it's been ever squarely approach is it not as a matter of law either in the seventh circuit i mention this in my reply brief they had they said maybe we should just make this unlawful entirely and that was actually you or the limits how long you may be sued because of the age of this debt we will not sue you and they admitted the first of those two sentences and on summary judgment they concluded even without any additional evidence that that was misleading as a matter of law and they question whether or not they should not just outlaw the knowing the attempt to collect a known time our debt because it is strife with possibility of deception and what will actually have last in it but made a decision the agency made a decision not  right they said that the talent hadn't requested that holding they pontificate on whether that was the appropriate result and the reason i think that's something we don't have to reach in this case well it to resolve the sixty nine s claim if you don't think it's misleading then you could at least find under sixty ninety two f that is unfair because i think that there are things that are unfair that are not necessarily mislead and we couldn't we could only find it's misleading and it's not inherently unfair to try to collect the data even if it's to actually expire well i would say that in that case that would be an advisory opinion if you do find it misleading because if something is misleading it's also unfair so at least this letter's unfair so then to go further and say we're declaring as a rule in this case you know i think that if you wanted to make it a rule that it is unfair i think that would make sense and that would be good jurisprudence because the debt buying industry is going to keep on tailoring these letters you know the other letters that in those other cases is the term saddle that i want settlement offers this letter uses the term offer and it creates a sense that we're coming after you now and you know we're going to make you an offer you can't refuse and you better respond by this date we want to help you out here but they say resolve as opposed to settle but our job is to decide this case isn't it how whether we agree with you or don't agree with that desirable public policy he would be to foreclose any effort to collect a debt the suit on which would be misleading to the least sophisticated consumer that's all you need in this case write this letter this time yes your honor i agree it is completely discretionary the request i made and the reason i made it is because debt collection industry the debt buying industry they're just going to change their letters they're going to keep on doing this practice and was there is a clear statement by an appellate court has the power to make law they're going to keep doing it well and it could be a clear statement by the congress of the united people out of tens of millions of dollars maybe hundreds definitely tens of millions of dollars per year for the past seven or eight or nine years since somebody got the bright idea of going up in the name get collecting debt statue expired on print because the credit the credit history thinks these the creditors think that these are worthless and somebody said no i don't i mean let me tell you a devil's devil's advocate i mean i understand that the seeming unfairness to someone who doesn't under you can make an argument to that for a small merchants who have debt on their hands then profit margin people haven't paid the debt your client and go bankrupt you just chose not to do nothing moral high ground about your client in  this he chose not to pay a legitimate dad and that the merchant can make a cent on the dollar maybe that will be helpful to sell to someone who might have a chance to collect that data and help that merchant who did nothing wrong extend credit to some bank it's not a small creditor they have the ability to bring a lawsuit within five years and they didn't do that so i think that while he has a moral obligation to pay the debt is moral obligation runs the h s b c doesn't run to be funding and that a client or a bar or two for five small loan companies in the same day and they would have different contracts or notes or installment agreement whatever the case limited a lot of legislation litigation and this cottage industry want to weigh it took about five years for the law finally the saddle so creditors knew what they needed to put in the one says that now who in the world is the the least sophisticated debtor in for example it one fact i think is important how old is the debt if you  may have some relevance but it's not the date in terms of statute of limitations or so i don't know the local law here i'm frank to admit but where i come from if somebody moves out of state for a period the statute tolls while the residing out of state well i know that delaware has that sort of statute that served in the state because you're absent from the state statute of limitations toll so i know that this has nothing to do with this case but it's certainly come up in other matters where you have someone who lives in say washington state and they have a credit card agreement that has a choice of operation for delaware and they've never been to delaware and so does this taxing limitation is that part of your argument that it you're placing too heavy a burden on the on the debt collector with all the different state laws to ever know if the statutes run or not certainly certainly that's something we can consider this statutes pretty strict liability statute but  provision which say if you made a payment you start that over again that there are court sort of tricky because we're actually what is the percentage that i don't know what the percentage of states i know what i know specifically what the law is in florida that so that that all goes to the question of whether if we were legislators or needed to adopt a person a rule to resolve this appeal what we want to do but for present purposes we have a ruling on a motion to dismiss the complaint alleges i believe this is not that the statute had run were obliged to assume that for purposes of deciding this case and so the question here is whether the least sophisticated consumer could have been misled by the letter isn't that right i think we're we're willing from from my standpoint from my client collector it's you know they're trying to do what the congress should have done with the truth right yet right and what's happened over the course of the last forty years now since the active place is that we have as you said various district court judge and circuit court judges and yeah well here's what sixty nine hundred g says but but you should also tell him this or you should also tell him this new should also tell him this so the fact that that collectors in general and that buyers in specific are changing their letters well of course they are because the legal landscape i settlement offer or settle in any of these letters anymore so we have taken the word judgment right we can't use anything like that so so in this case the word instead of settled it becomes resolve what from the which is a synonym of subtle at least in some is right well it can be and here's here's the problem is that all right so now what plaintiff what palin is asking is that now you you need to find that yes resolve is the same a settle for this purpose but if it isn't the same all right but i would like to agree that the size of the debt is relevant the size of the debt size of the debt i think if it's just five figured that the likelihood is it was a more sophisticated bar that i know i i am opposed to one hundred dollars i don't know i don't i don't i guess i don't have an opinion on that i don't know i know i  could be because this guy this person may have been getting letters for ten or fifteen years i don't know how bad it is and he pretty much nobody is going to be saying it's a small amount of money well you may think you're going to you know just keeps any molesters but you're posing he also says he also because we operate inside this system on a daily basis and so what litigation is something that's at the forefront of our minds is what we do but i think a person who gets a letter and says you know five thousand dollars will accept a thousand dollars by by the end of the week but if if you don't take that off by the end of the week or we're not required and we're not inclined to offer it again very unsophisticated person who doesn't think about litigation a lot may very well think in terms of the paycheck  well that's a different issue and that's really not that's not a contention in this case that well no but it goes hand in glove with litigation you can't well what most places going to somebody who's paycheck without starting an action i honestly don't believe the least the least sophisticated consumer understands garnishment i don't think i think the least of his the k to consumer would believe because this is this is a tactic that i've seen in that collection how do we decide what is the least sophisticated better it's an object everybody signs on to that proposition you know it's an object this time how do you decide that how do i you know what is the negligence action of a reasonable person a jury question i think i would think you'd matter of law that's a reasonable the standard this is an object we do it it takes strangers it explains we did so what these courts are using that in my view are using that formula they're talking about the extreme they're saying as a matter us it's not a fact is generally it's not because that's why that's why how in the world can you say least sophisticated that or it is not an unsophisticated it's not a fact issue or because this court has done itself court has time and time again issued orders and letters i mean we've got a judge deciding that but i'm the question in my mind is what do they draw on they draw on the fact that it is still an objective standard it's not subjective and when you look at it i understand it's isn't it really i don't think so i think i think it's more than that it it in visions a level of a level of success not not a four year old child not a not a twelve year old child a level of sophistication someone who has entered into credit you've got a country with people who are illiterate all the way to geniuses right and it's not in the end of the scale and they come from all sorts of social economics that well you're opposing counsel and agree that there are some words t i i'm going to speak for him but i know in his brief he points out a number of cases and he pointed out the pain those case from the same sort of this as even if you have the language is still a violation so it wasn't thanks it's unfair to even try to collect right i mean and if you listen to the guts of that argument the argument is first of all i want you to explicitly say that all state laws regarding statute of limitations to the extent they don't extinguish that are preempted by the f t c you can't collect that that's pretty that's time barred that's his first argument he wants an explicit ruling that the f t c pre amps all of those state laws and the second one is an implicit ruling from the court that you can't collect time barred debt because there's no letter that you can send that we believe will not create fear in somebody that if they don't pay that of course she said collective time of course you can't yeah that's a moral obligation the legal obligation really course but he explicitly requested to do that there's no remedy he explicitly requests the court to right out of existence that right that  legitimate debt collector might not know if somebody is moved out of state or not let's tell how in the world can you write a letter that encompasses all that how is a debt collector supposed to know what to say to somebody because on any given is the time period after which it may not report on a person's credit report i don't know what that means to what we're trying to do here is collect a debt what is it how are they with that so most states are six years for a written contract some states are three some are for some saying is if you had a six year statue of limitations you might have a rule which says if you make a partial payment it doesn't run another six but if you had a short period it might be that a part payment  s in my to start all over again yeah in my experience the operative effect is that they say this is how often you have to sue and then there's another statute that says here's how you calculate know all this and that this is a strict liability statute so i'm gathering if you went to court and we said it's misleading if you made a mistake in the declaration a darn you know i thought he'd move to delaware but he had there's no good faith i mean how do we manage this  well it's really not that so there are only fifty states the majority of them operate within ali that's a lot but it's really not when you're operating from a computer database standpoint every state has a statue of limitations you you can never be sued on this debt because they might be wrong just looking at what's in the database but if the debt collector thinks that they can actually sue them because they have some reason they can always try to bring a lawsuit and you know the chips will car you know fall where they where they may but to let them keep on collecting what what they believe to be unequivocally time our debt i don't think is a fair practice with respect to the statute of limitations in the various and variances among states i have not seen a case and it's never been pointed out to me where the statute of scenario where one could clearly infer that you could not see if they just give a disclaimer we don't know whether or not we can collect this but length of time the debt has been we suggest you see an attorney that you would like that either would you because that would scare twenty percent he can't collect and he suggesting he might be able to collect that would be ok with you get what about one hundred twenty percent i didn't feel he knows for sure he's saying i may or may not be able to collect but my particular debt collector knows for there is no it if you try to say too much you could be misleading them as the reality council have one question in twenty five and justice assume with me as we will do i think that for purposes of this appeal everybody agrees it's a time born dead in twenty five words or less given that we can resolve this case on the basis of this letter is a remedial statute meant to protect consumers from trickery and consumers are still being tricked even after courts have said you can't say settlement offer or said you can't use this language to go further would to say generally speaking you can't if you know it's time barred and use try to seek the debt any way you are engaging in it per se unfair or unconscionable or deceptive practice because it's going to happen anyway and they're going to keep doing the good vibe or i think you are