In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2308

RYAN BOUCHER, et al.,

Plaintiffs-Appellants,

v.

FINANCE SYSTEM OF GREEN BAY, INC., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:17-cv-132 — William C. Griesbach, Judge.

____________________

ARGUED DECEMBER 1, 2017 — DECIDED JANUARY 17, 2018

____________________

Before BAUER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. Plaintiffs sued defendant, a debt collection agency, for violations of the Fair Debt Collection Practices Act (“FDCPA”). Specifically, plaintiffs allege that defendant’s dunning letters were false and misleading because 

they threatened to impose “late charges and other charges” 

that could not lawfully be imposed. The district court dismissed plaintiffs’ claims because the challenged statement 

mirrors the safe harbor language that this Court instructed 
2 No. 17-2308

debt collectors to use in Miller v. McCalla, Raymer, Padrick, 

Cobb, Nichols, & Clark, LLC, 214 F.3d 872 (7th Cir. 2000). The 

district court further held that defendant’s failure to remove 

the reference to “late charges and other charges” was not materially misleading. For the reasons below, we reverse. 

I. Background

Plaintiffs are Wisconsin residents who incurred and defaulted on debts for medical services. Plaintiffs’ creditors assigned these debts to defendant, Finance System of Green Bay, 

Inc. (“FSGB”), a collection agency. In turn, FSGB sent plaintiffs

a letter informing them of their principal balance, their interest balance, and their total account balance. The letter also included the following statement: 

As of the date of this letter, you owe $[a stated 

amount]. 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. For further information, write to the 

above address or call [phone number].

On January 30, 2017, plaintiffs filed a class action complaint against FSGB in the Eastern District of Wisconsin for 

violations of the FDCPA, 15 U.S.C. §§ 1692–1692p. Plaintiffs 

allege that FSGB’s letter is false because under Wisconsin law, 

FSGB cannot lawfully or contractually impose “late charges 

and other charges.” Plaintiffs further allege that the letter 

causes unsophisticated consumers to incorrectly believe that 

they will avoid such charges, and thus benefit financially, if 

they immediately send payment. For these reasons, plaintiffs 
No. 17-2308 3

claim that the letter is false, misleading, and deceptive in violation of § 1692e. Plaintiffs also claim that the letter fails to 

properly state the amount of debt, as required by 

§ 1692g(a)(1). 

In its motion to dismiss, FSGB argued that it complied 

with the FDCPA as a matter of law because the allegedly false 

statement tracks the safe harbor language provided by this 

Court in Miller. FSGB further asserted that, although it may 

not lawfully impose “late charges and other charges,” the reference to such charges was not materially misleading because

it is entitled to charge interest.

The district court granted defendants’ motion to dismiss. 

In doing so, it acknowledged that some of the Miller safe harbor language—namely, the phrase “late charges and other 

charges”—does not “strictly” apply in this case. Boucher v. Fin. 

Sys. of Green Bay, Inc., No. 17-cv-132, 2017 WL 2345678, at *4 

(E.D. Wis. May 30, 2017). However, it reasoned that “the central purpose of Miller’s safe harbor formula is to provide debt 

collectors with a way to notify debtors that the amounts they 

owe may ultimately vary.” Id. Accordingly, it concluded that 

debt collectors like FSGB may rely on the Miller safe harbor 

language as long as the debt is variable in some way—regardless of “whether the increase occurred because of interest, late 

charges, other charges, some combination thereof, or all of the 

above.” Id. Because FSGB’s letter conveyed “the crucial fact” 

that plaintiffs’ debts were variable, the court concluded that 

FSGB was entitled to safe harbor protection under Miller. This 

appeal followed. 
4 No. 17-2308

II. Discussion

We review de novo a district court’s decision to grant a 

motion to dismiss under Rule 12(b)(6). Bible v. United Student 

Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). In doing so, 

we accept as true all factual allegations in the complaint and 

draw all permissible inferences in plaintiffs’ favor. Id. To survive a motion to dismiss, a plaintiff must allege “enough facts 

to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). “The plausibility standard is not akin 

to a ‘probability requirement,’but it asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

A. FSGB’s Dunning Letter is Materially False, Misleading, and Deceptive in Violation of § 1692e

The FDCPA broadly prohibits the use of any “false, deceptive, or misleading representation or means in connection 

with the collection of any debt.” 15 U.S.C. § 1692e. Along with 

this general prohibition, the statute lists specific examples of 

prohibited conduct. See id.; see also Nielsen v. Dickerson, 307 

F.3d 623, 634 (7th Cir. 2002) (describing this list as “nonexclusive”). The following examples are relevant here: “[t]he false 

representation of ... the character, amount, or legal status of 

any debt”; “[t]he threat to take any action that cannot legally 

be taken or that is not intended to be taken”; and “[t]he use of 

any false representation or deceptive means to collect or attempt to collect any debt ....” 15 U.S.C. § 1692e(2)(A), (5), (10). 
No. 17-2308 5

Even if a statement in a dunning letter is “false in some 

technical sense,” it does not violate § 1692e unless it would 

confuse or mislead an unsophisticated consumer. See Wahl v. 

Midland Credit Mgmt., Inc., 556 F.3d 643, 645–46 (7th Cir. 2009); 

Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th 

Cir. 2003). “The unsophisticated consumer is ‘uninformed, 

naive, [and] trusting,’ but possesses ‘rudimentary knowledge 

about the financial world, is wise enough to read collection 

notices with added care, possesses “reasonable intelligence,” 

and is capable of making basic logical deductions and inferences.’” Williams v. OSI Educ. Servs., Inc., 505 F.3d 675, 678 (7th 

Cir. 2007) (alteration in original) (quoting Pettit v. Retrieval 

Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 

2000)). An unsophisticated consumer “may tend to read collection letters literally, [but] he does not interpret them in a 

bizarre or idiosyncratic fashion.” Pettit, 211 F.3d at 1060. That 

is, “[t]he ‘unsophisticated consumer’ isn’t a dimwit.” Wahl, 

556 F.3d at 645.

Moreover, “[a] statement cannot mislead unless it is material.” Hahn v. Triumph P’hips, LLC, 557 F.3d 755, 758 (7th Cir. 

2009). After all, “[t]he purpose of the Fair Debt Collection 

Practices Act is to protect consumers, and they don’t need protection against false statements that are immaterial in the 

sense that they would not influence a consumer’s decision.” 

Muha v. Encore Receivable Mgmt., Inc., 558 F.3d 623, 628 (7th Cir. 

2009). In this context, a statement is material if it would “influence a consumer’s decision ... to pay a debt in response to 

a dunning letter.” Id.

Thus, to state a claim under § 1692e, plaintiffs must plausibly allege that FSGB’s dunning letter would materially mis-
6 No. 17-2308

lead or confuse an unsophisticated consumer. Because this inquiry involves a “fact-bound determination of how an unsophisticated consumer would perceive the statement,” dismissal is only appropriate in “cases involving statements that 

plainly, on their face, are not misleading or deceptive.” 

Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 812, 

814–15 (7th Cir. 2016) (quoting Ruth v. Triumph P’ships, 577 

F.3d 790, 800 (7th Cir. 2009)); see also Zemeckis v. Glob. Credit & 

Collection Corp., 679 F.3d 632, 636 (7th Cir. 2012) (“As a general 

matter, we view the confusing nature of a dunning letter as a 

question of fact that, if well-pleaded, avoids dismissal on a 

Rule 12(b)(6) motion.”) (internal citation omitted). “We have 

cautioned that a district court must tread carefully before 

holding that a letter is not confusing as a matter of law when 

ruling on a Rule 12(b)(6) motion because ‘district judges are 

not good proxies for the “unsophisticated consumer” whose 

interest the statute protects.’” McMillan v. Collection Prof’ls., 

Inc., 455 F.3d 754, 759 (7th Cir. 2006) (quoting Walker v. Nat’l 

Recovery, Inc., 200 F.3d 500, 501–03 (7th Cir. 1999)).

In Lox v. CDA, Ltd., 689 F.3d 818, 825 (7th Cir. 2012), we 

held that a dunning letter is false and misleading if it 

“impl[ies] that certain outcomes might befall a delinquent 

debtor when, legally, those outcomes cannot come to pass.” 

The dunning letter in Lox stated the following: “Our client 

may take legal steps against you and if the courts award 

judgement, the court could allow court costs and attorney 

fees.” Id. at 820–21. The plaintiff moved for summary judgment, claiming that this language was false and misleading as 

a matter of law because “[the creditor] could not, under any 

circumstances, have recovered attorney fees from [him].” Id. 

at 820. This was so because, under the so-called “American 
No. 17-2308 7

Rule,” courts do not award attorney fees unless there is an explicit contractual or statutory exception. See id. at 823. Because 

the debt collector failed to identify any applicable exception, 

it effectively “admit[ted] (through waiver) that the award of 

attorney fees was not a possible outcome.” Id. at 824. Thus, we 

concluded that the statement about attorney fees was false. Id.

In addition, the statement was misleading to an unsophisticated consumer, who “is not aware of the American Rule on 

attorney fees,” and “is therefore likely to believe a debt collector when it says that attorney fees are a potential consequence 

of nonpayment.” Id. at 824–25. 

Here, as in Lox, the challenged statement is misleading to 

an unsophisticated consumer. The dunning letter states that, 

“[b]ecause 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.” While creditors of medical debts may charge interest, FSGB admits that it cannot impose “late charges and 

other charges” under Wisconsin law. Therefore, the dunning 

letter falsely implies a possible outcome—the imposition of 

“late charges and other charges”—that cannot legally come to 

pass. See id. at 825. This statement is misleading to an unsophisticated consumer because “[t]his is not the type of legal 

knowledge we can presume the general public has at its disposal.” Id. at 826.1

 1 Although the dunning letter uses the word “may,” the presence of 

hypothetical language does not make the statement less confusing. See 

Lox, 689 F.3d at 825 (“[C]onditional language, particularly in the absence 

of any language clarifying or explaining the conditions, does not insulate 

a debt collector from liability.” (quoting Gonzales v. Arrow Fin. Servs., LLC, 

660 F.3d 1055, 1063 (9th Cir. 2011))). The challenged statement in Lox also 

used “multiple hypothetical words” like “may” and “could.” Id. at 823–

24. However, we explained that “[t]he clear meaning of this statement is 
8 No. 17-2308

The next question is whether the challenged statement is 

material—i.e., whether the potential imposition of “late 

charges and other charges” would influence an unsophisticated consumer’s decision to pay the debt. The district court 

reasoned that, as long as the debt collector communicates that 

the debt is variable, the ultimate basis for an increase is immaterial. Similarly, FSGB argues that “[a]ny consumer who owes 

a variable debt must decide whether to pay sooner than later 

to avoid that variance, regardless of whether any increase in 

the amount of the debt is due to the addition of interest, late 

charges, other charges, or some combination thereof.” 

We disagree. Of course, debtors always have some incentive to pay variable debts as quickly as possible, regardless of 

the source of variability. However, this incentive is even 

greater if the debt collector threatens to impose “late charges 

and other charges” in addition to interest.2 Here, the letter 

does not say how much the “late charges” are or what “other 

charges” might apply, so consumers are left to guess about the 

 

that if [the debt collector] decided to bring legal action against [the debtor] 

and was victorious, the award of attorney fees to [the debt collector] was 

one possible outcome.” Id. Because the debt collector conceded that this 

was not possible, the statement was misleading. Id. Similarly, the challenged statement here falsely suggests that the imposition of late charges 

and other charges is a possible consequence of nonpayment. 

2 It is worth noting that plaintiffs owed little to no interest on their 

medical debts in this case. For example, plaintiffs Christopher and Michele 

Dettloff had an interest balance of $0.00; plaintiff Adam Duch had an interest balance of $0.00; and plaintiffs Ryan and Heather Boucher had an 

interest balance of just $0.09. Because the amount of interest was negligible, the purported “late charges and other charges” would likely have 

played an even more important role in the consumer’s decision whether 

to pay the debt. 
No. 17-2308 9

economic consequences of failing to pay immediately. But regardless of the amount of such charges, an unsophisticated 

consumer understands that these additional charges could 

further increase the amount of debt owed, thus potentially 

making it “more costly” for the consumer to hold off on payment. Id. at 827. Even if these additional charges are minimal, 

such that they might not “alter [the consumer’s] course of action,” they are still material because they would be “a factor 

in his decision-making process.” Id.3

This is especially true for consumers who are subject to 

debt collection activity. We have acknowledged that “[w]hen 

default occurs, it is nearly always due to an unforeseen event 

such as unemployment, overextension, serious illness, or 

marital difficulties or divorce.” McMillan, 455 F.3d at 762 

(quoting S. Rep. No. 95–382, at 2 (1977), as reprinted in 1977 

U.S.C.C.A.N. 1695, 1697). Because these consumers must often make difficult decisions about how to use scarce financial 

resources, it is plausible that the fear of “late charges and 

other charges” might influence these consumers’ choices. 

Therefore, the challenged statement is material. 

In sum, plaintiffs have plausibly alleged that the dunning 

letter was materially false and misleading to an unsophisticated consumer in violation of § 1692e.

 3 Moreover, even unsophisticated consumers understand that interest 

payments represent a contractual arrangement to pay more for the benefit 

of delaying full payment. In contrast, the purpose of “late charges” is to 

punish the consumer for violating the contract. The punitive nature of 

“late charges” might further incentivize an unsophisticated consumer to 

pay off the debt. 
10 No. 17-2308

B. The Miller Safe Harbor Does Not Apply

FSGB argues that it is nevertheless immune from liability 

because it used the safe harbor language provided by this 

Court in Miller. 

In Miller, we addressed whether defendants had violated 

a separate provision of the FDCPA: § 1692g(a)(1). See 214 F.3d 

at 875–76. That provision requires debt collectors to send the 

consumer a written notice containing “the amount of the 

debt.” 15 U.S.C. § 1692g(a)(1). The dunning letter in Miller 

stated the unpaid principal balance, but added that “this 

amount does not include accrued but unpaid interest, unpaid 

late charges, escrow advances or other charges.” 214 F.3d at 

875. The letter also stated that the amount owed “changes 

daily.” Id. We held that this letter violated § 1692g(a)(1) because the unpaid principal balance “is only a part of the debt” 

and the statute requires debt collectors “to state the total

amount due—interest and other charges as well as principal—on the date the dunning letter [is] sent.” Id. at 875–76. 

We further held that the defendants were not excused 

from complying with § 1692g(a)(1) simply because the 

amount owed changed daily. However, “in an effort to minimize litigation,” we fashioned the following safe harbor language for debt collectors to use if the amount owed is variable:

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 
No. 17-2308 11

for collection. For further information, write the undersigned or call 1-800-[phone number].

Id. at 876 (alterations in original). Debt collectors are not required to use this language. Id. However, “[a] debt collector 

who uses this form will not violate the ‘amount of debt’ provision, provided, of course, that the information he furnishes 

is accurate and he does not obscure it by adding confusing 

other information (or misinformation).” Id. Assuming this 

“essential qualification” is met, a debt collector who uses this 

language “will as a matter of law have discharged his duty to 

state clearly the amount due.” Id.

Because the Miller decision only addressed § 1692g(a)(1), 

we have not previously addressed whether the safe harbor 

language also immunizes debt collectors from liability under 

§ 1692e. However, most district courts in this Circuit have 

concluded that it does. See, e.g., Washington v. Portfolio Recovery 

Assocs., LLC, 211 F. Supp. 3d 1041, 1051–52 (N.D. Ill. 2016); 

Wilder v. J.C. Christensen & Assocs., Inc., No. 16-cv-1979, 2016 

WL 7104283, at *4 (N.D. Ill. Dec. 6, 2016); Tilmon v. LVNV Funding, LLC, No. 12-cv-734-WDS, 2014 WL 335234, at *3 (S.D. Ill. 

Jan. 30, 2014); but see O’Chaney v. Shapiro & Kreisman, LLC, No. 

02-cv-3866, 2004 WL 635060, at *4 (N.D. Ill. Mar. 29, 2004).

We agree with the majority of district courts that have addressed the issue for two reasons. First, the two statutory provisions at issue sometimes overlap: § 1692g(a)(1) requires 

debt collectors to state “the amount of the debt,” and 

§ 1692e(2) prohibits debt collectors from making a “false representation of ... the character, amount, or legal status of any 

debt.” 15 U.S.C. §§ 1692g(a)(1), e(2). Thus, it makes sense to 

consider Miller’s safe harbor protection where, as here, plain-
12 No. 17-2308

tiffs allege that the debt collector violated § 1692e by misrepresenting the amount of the debt “in a manner identical to a 

Section 1692g claim.” Wilder, 2016 WL 7104283 at *4. Second, 

“Miller would not offer much of a safe harbor if this language 

(or its equivalent) subjected debt collectors to liability under 

a different FDCPA provision as ‘misleading’ or ‘deceptive’ on 

its face.” Id.; see also Washington, 211 F. Supp. 3d at 1051–52 

(“[I]t would be inappropriate to hold that Defendants violated [§ 1692e] where they used the precise language that the 

Seventh Circuit has instructed creditors to use in cases where 

[the debt is variable].”). 

However, even if a debt collector may generally rely on the 

safe harbor language to avoid liability under § 1692e, Miller’s 

accuracy requirement still applies. As we explained in Miller, 

a debt collector is only entitled to safe harbor protection if “the 

information he furnishes is accurate and he does not obscure 

it by adding confusing other information (or misinformation).” 214 F.3d at 876. And, although the Miller language 

is not misleading or deceptive on its face, it may nevertheless 

be inaccurate under certain circumstances. See, e.g., Ruge v. 

Delta Outsource Grp., Inc., No. 15-cv-10865, 2017 WL 959017, at 

*3 (N.D. Ill. Mar. 13, 2017) (holding that, although “[the defendant’s] letter is nearly identical to the safe harbor language 

in Miller,” the defendant was not immune from liability because “[t]he safe harbor language that says the amount of the 

debt might change because of interest was not true in this particular case”) (footnote omitted). Here, FSGB’s use of the safe 

harbor language was inaccurate because FSGB could not lawfully impose “late charges and other charges.” Therefore, 

FSGB is not entitled to safe harbor protection under Miller. 
No. 17-2308 13

In support of its position to the contrary, FSGB relies heavily on a single statement—indeed, a single word—in Chuway 

v. Natl’s Action Fin. Servs., Inc., 362 F.3d 944 (7th Cir. 2004). Unlike the variable debt at issue in Miller, the debt at issue in 

Chuway was fixed. Id. at 947. Accordingly, we concluded that 

Miller was “not on point.” Id. Although the debt in Chuway 

was fixed, the dunning letter encouraged the debtor to call to 

obtain their “most current balance information.” Id. We concluded that this statement was confusing because it suggested 

to the consumer that the defendant was trying to collect additional debt. Id. at 947–48. After reaching this conclusion, we 

advised debt collectors who are collecting fixed debts to 

simply state the amount due and “stop[] there, without talk 

of the ‘current balance.’” Id. at 949. We continued: “If, instead, 

the debt collector is trying to collect the listed balance plus the 

interest running on it or other charges, he should use the safeharbor language of Miller.” Id. FSGB argues that this sentence, 

and in particular the word “or,” advises debt collectors to use 

the safe harbor language “any time there is reason for the 

amount owed to increase in the future, whether due to interest, late charges, other charges, or some combination thereof.”

Admittedly, debt collectors may have followed our guidance in Chuway in a good-faith attempt to comply with the 

FDCPA. However, this statement was dicta because we concluded that Miller did not apply to the fixed debt in Chuway. 

Moreover, our statement in Chuway must be read in conjunction with Miller, which explained that a defendant is not entitled to safe harbor protection if it provides inaccurate information. In any event, our judicial interpretations cannot override the statute itself, which clearly prohibits debt collectors 

from making false and misleading misrepresentations. See 

Oliva v. Blatt, Hasenmiller, Leibsker & Moore LLC, 864 F.3d 492, 
14 No. 17-2308

500 (7th Cir. 2017) (acknowledging debt collectors’ good faith 

reliance on our precedent, but explaining that “the controlling 

law is and always has been the statute itself” and “the statute 

remains the law even if judges err”). Thus, FSGB’s reliance on 

Chuway is not persuasive. 

At bottom, FSGB argues that debt collectors should be able 

to copy and paste the Miller safe harbor language to avoid liability under § 1692e, regardless of whether that language is 

accurate under the circumstances. This argument fails for two 

reasons. First, “[a]lthough the safe harbor was offered in an 

attempt both to bring predictability to this area and to conserve judicial resources, it is compliance with the statute, not 

our suggested language, that counts.” Williams, 505 F.3d at 

680. As explained above, FSGB’s letter fails that decisive test 

because it is false and misleading to an unsophisticated consumer. Second, debt collectors are required to tailor boilerplate language to avoid ambiguity. See Lox, 689 F.3d at 825 

(holding that the dunning letter would violate § 1692e even if 

it was “a form letter”). If they fail to do so, they run the risk 

of liability. See id. (“When language in a debt collection letter 

can reasonably be interpreted to imply that the debt collector 

will take action it has no intention or ability to undertake, the 

debt collector that fails to clarify that ambiguity does so at its 

peril.” (quoting Gonzalez v. Arrow Fin. Servs., LLC, 660 F.3d 

1055, 1063 (9th Cir. 2011))). 

In sum, debt collectors cannot immunize themselves from 

FDCPA liability by blindly copying and pasting the Miller safe 

harbor language without regard for whether that language is 

accurate under the circumstances. Therefore, the district court 

erred by dismissing plaintiffs’ claims on this ground. 
No. 17-2308 15

C. Plaintiffs Did Not Forfeit Their § 1692g(a)(1) Claim

The final issue is whether plaintiffs have forfeited their 

claim under § 1692g(a)(1). FSGB argues that plaintiffs abandoned this claim on appeal because their issue statement does 

not reference it and they dedicate just one paragraph of their 

opening brief to it. 

FSGB is wrong. As explained above, the claims under 

§ 1692e and § 1692g(a)(1) overlap because plaintiffs allege 

that FSGB violated both provisions by misrepresenting the 

amount of the debt. Thus, as plaintiffs point out, their discussion of whether the statement was misleading under § 1692e 

“goes hand-in-hand with whether the amount of the debt has 

been accurately disclosed” under § 1692g(a)(1). Moreover, the 

safe harbor analysis is the same because, as FSGB argues in its 

briefing, Miller applies equally to claims brought under both 

provisions. Therefore, plaintiffs have not forfeited their 

claims under § 1692g(a)(1). For the reasons outlined above, 

plaintiffs have stated a claim under both § 1692g(a)(1) and 

§ 1692e. 

III. Conclusion

For the foregoing reasons, we REVERSE the judgment of the 

district court.