In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-2158

CALDEAN M. CHUWAY,

Plaintiff-Appellant,

v.

NATIONAL ACTION FINANCIAL SERVICES INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 1247—Joan Humphrey Lefkow, Judge.

____________

ARGUED JANUARY 21, 2004—DECIDED MARCH 30, 2004

____________

Before FLAUM, Chief Judge, and POSNER and RIPPLE, Circuit

Judges.

POSNER, Circuit Judge. The Fair Debt Collection Practices

Act, 15 U.S.C. §§ 1692 et seq., requires that any dunning

letter by a debt collector as defined by the Act state “the

amount of the debt” that the debt collector is trying to

collect. § 1692g(a)(1); Miller v. McCalla, Raymer, Padrick,

Cobb, Nichols & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir.

2000). The defendant, conceded to be a debt collector,

mailed the plaintiff a letter which identifies a creditor (a
2 No. 03-2158

credit card company) and states that the “balance” is

$367.42. The letter adds that the company “has assigned

your delinquent account to our agency for collection. Please

remit the balance listed above in the return envelope

provided. To obtain your most current balance information,

please call 1-800-916-9006. Our friendly and experienced

representatives will be glad to assist you and answer any

questions you may have.” The district judge granted

summary judgment for the defendant, ruling that the letter

stated “the amount of the debt” and therefore did not

violate the statute.

Both parties appeal to our decision in Miller, but it is

not on point. The dunning letter in that case listed the “unpaid principal balance” of $178,844.65 but added that “this

amount does not include accrued but unpaid interest,

unpaid late charges, escrow advances or other charges. . . .

The amount to reinstate or pay off your loan changes

daily. You may call our office for complete reinstatement

and payoff figures.” Id. at 875. An 800 number was listed.

We held that the letter violated the Act because it did not

state the amount of the debt owed by the plaintiff, since

the debt was not limited to the unpaid principal. See also

Wilkerson v. Bowman, 200 F.R.D. 605, 607-08 (N.D. Ill. 2001).

To determine the amount she would have had to call the defendant. Here—the defendant’s lawyer stated without

contradiction at oral argument—the entire debt that the

defendant was hired to collect was the $367.42 listed as the

“balance.”

So if the letter had stopped after the “Please remit”

sentence, the defendant would be in the clear. But the letter

didn’t stop there. It went on to instruct the recipient on how

to obtain “your most current balance information.” If this

means that the defendant was dunning her for something

more than $367.42, it’s in trouble because the “something
No. 03-2158 3

more” is not quantified. Actually, as we said, the defendant

hadn’t been hired to collect the current balance of the

plaintiff’s credit card debt, insofar as that current balance

exceeded $367.42. The credit card company, which is to say

the creditor, not the debt collector, may charge the plaintiff

interest on the $367.42 between when that debt accrued and

when the plaintiff finally pays and may add the interest

accruing in the interim to the plaintiff’s current balance. But

that would not be a part of “the amount of the debt” for

which the defendant was dunning her, and hence it would

not precipitate a violation by the defendant. It would be as

if between when the $367.42 debt was turned over to the

defendant for collection and when the plaintiff received the

dunning letter, the plaintiff had defaulted on a separate debt

that she owed the credit card company. The fact that the

defendant didn’t add that to the debt for which it had been

retained to dun the plaintiff would not result in a violation

of the statute. Quite the contrary, for a debt collector has no

authority to collect debts that it has not been authorized by

a creditor to collect; nor was the defendant trying to do that.

This is not a multiple-debt case. Compare Graziano v.

Harrison, 763 F. Supp. 1269, 1276 (D.N.J.) affirmed in part,

reversed in part on other grounds, 950 F.2d 107 (3d Cir.

1991), with Joseph v. J.J. MacIntyre Cos., L.L.C., 238 F. Supp.

2d 1158, 1167-69 (N.D. Cal. 2002).

But suppose the plaintiff was confused and thought the

reference to the “current balance” meant that the defendant

was trying to collect an additional debt, only not telling her

how large an additional debt and thus violating the statute.

Her affidavit states that she didn’t know whether the defendant wanted just $367.42 or some unknown greater

amount that she could discover only by calling the 800

number. Suppose she had called and discovered that her

current balance was $567.42. She wouldn’t know whether to

mail $367.42 to the defendant or $567.42, without making a
4 No. 03-2158

further inquiry. She might pay the larger amount thinking

she would be sued otherwise, even though the extra $200

might not yet be due, let alone overdue.

It is not enough that the dunning letter state the amount

of the debt that is due. It must state it clearly enough that

the recipient is likely to understand it. Bartlett v. Heibl, 128

F.3d 497, 500-01 (7th Cir. 1997); Avila v. Rubin, 84 F.3d 222,

226 (7th Cir. 1996); Terran v. Kaplan, 109 F.3d 1428, 1431-32

(9th Cir. 1997); Miller v. Payco-General American Credits, Inc.,

943 F.2d 482, 483-84 (4th Cir. 1991). Otherwise the collection

agency could write the letter in Hittite and have a secure

defense. The defendant concedes the principle but insists

that to withstand summary judgment the plaintiff must

always submit a survey or some other form of systematic

empirical evidence demonstrating the propensity of the

letter to confuse. There is no basis for so flat a rule. Avila v.

Rubin, supra, 84 F.3d at 226-27. If it is apparent just from

reading the letter that it is unclear, as in id. at 227; Bartlett v.

Heibl, supra, 128 F.3d at 501; and Chauncey v. JDR Recovery

Corp., 118 F.3d 516, 519 (7th Cir. 1997), and the plaintiff

testifies credibly that she was indeed confused and that,

unlike the plaintiff in Pettit v. Retrieval Masters Creditors

Bureau, Inc., 211 F.3d 1057, 1061-62 (7th Cir. 2000), she is

representative of the type of people who received that or a

similar letter, no further evidence is necessary to create a

triable issue.

But if it is unclear whether the letter would confuse intended recipients of it, then to make out a prima facie case

the plaintiff has to go further and present evidence (beyond

her own say-so) of confusion, for example in the form of

a carefully designed and conducted consumer survey. Id.

at 1060-62; Walker v. National Recovery, Inc., 200 F.3d 500,

502, 504 (7th Cir. 1999); Johnson v. Revenue Management Corp.,

169 F.3d 1057, 1059-61 (7th Cir. 1999). No survey was
No. 03-2158 5

conducted here, but the entire bench was confused about

the meaning of the letter until the defendant’s lawyer explained it to us at the oral argument, and our confusion,

coupled with the plaintiff’s affidavit in which she plausibly

attested that she had been confused by the letter, is enough

to satisfy her burden of proof. For there is no reason to suppose her unrepresentative of the credit card customers to

whom such letters are sent; it is not as if the letter would be

clear to any reasonably competent English speaker but that

unbeknownst to the defendant the plaintiff happens not to

have a good command of the English language.

It is impossible to draft a letter that is certain to be understood by every person who receives it; only if it would

confuse a significant fraction of the persons to whom it is

directed will the defendant be liable. “The Act is not violated by a dunning letter that is susceptible of an ingenious

misreading, for then every dunning letter would violate

it.” White v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000). But

one doesn’t have to be ingenious to misread the defendant’s

letter; one has to be exceptionally ingenious to excavate its

meaning.

Some decisions, it is true, say that the letter has to be clear

to the least sophisticated consumer. They don’t mean this

literally, because, “literally, the least sophisticated consumer

is not merely ‘below average,’ he is the very last rung on the

sophistication ladder. Stated another way, he is the single

most unsophisticated consumer who exists,” Gammon v. GC

Services Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir.

1994)—which means that he cannot even read, for the

literacy rate in the United States is not 100 percent. So those

decisions sensibly add, as in Clomon v. Jackson, 988 F.2d

1314, 1319 (2d Cir. 1993), that “courts have consistently

applied the least-sophisticated-consumer standard in a

manner that protects debt collectors against liability for
6 No. 03-2158

unreasonable misinterpretations of collection notices.” See

also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d

1232, 1236 (5th Cir. 1997). As we explained in Gammon, a

more precise benchmark is the understanding of “the unsophisticated debtor,” a formulation which “assumes that

the debtor is ‘uninformed, naive, or trusting,’ [but] that

statements are not confusing or misleading unless a significant fraction of the population would be similarly misled.”

Veach v. Sheeks, 316 F.3d 690, 692-93 (7th Cir. 2003).

The district judge acknowledged that the defendant’s

letter had “the potential to confuse an unsophisticated

consumer”—called the letter “problematic” and said that it

did “a poor job of informing an ‘unsophisticated consumer’

of what the amount of the debt is.” But she thought that this

court had established a rule that unless a letter contains an

outright contradiction, the plaintiff must present evidence

outside of the letter itself and her own testimony. There is

no such rule, and it would not be a defensible gloss of the

Fair Debt Collection Practices Act. A letter can be confusing

even to a sophisticated reader though it does not contain an

outright contradiction— witness the defendant’s letter in

this case.

Our conclusion does not place debt collectors on a razor’s

edge, where if they say too little they violate the Act by

failing to disclose the amount of the debt they are trying to

collect and if they say too much they violate the Act by

confusing the consumer. If the debt collector is trying to

collect only the amount due on the date the letter is sent,

then he complies with the Act by stating the “balance” due,

stating that the creditor “has assigned your delinquent

account to our agency for collection,” and asking the

recipient to remit the balance listed—and stopping there,

without talk of the “current” balance. If, instead, the debt

collector is trying to collect the listed balance plus the
No. 03-2158 7

interest running on it or other charges, he should use the

safe-harbor language of Miller: “As of the date of this letter,

you owe $___ [the exact amount due]. Because of interest,

late charges, and other charges that may vary from day to

day, the amount due on the day you pay may be greater.

Hence, if you pay the amount shown above, an adjustment

may be necessary after we receive your check, in which

event we will inform you before depositing the check for

collection. For further information, write the undersigned or

call 1-800- [phone number].” Miller v. McCalla, Raymer,

Padrick, Cobb, Nichols & Clark, L.L.C., supra, 214 F.3d at 876.

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-30-04