IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JENNIFER MCCURDY, 

Plaintiff, 

v. 

PROFESSIONAL CREDIT SERVICE, 

Defendant. 

Kenneth P. Dobson 

Attorney At Law 

0324 S.W. Abernethy Street 

Portland, Oregon 97239 

James L. Davidson 

Greenwald Davidson Radbil PLLC 

5550 Glades Road, Suite 500 

Boca Raton, Florida 33431 

Attorneys for plaintiff 

Wade C. Isbell 

Attorney At Law 

Professional Credit Service 

P.O. Box 7637 

Springfield, Oregon 97475 

Attorney for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:15-CV-01498-AA 

OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 1 of 10
AIKEN, Chief Judge: 

Defendant Professional Credit Service moves to dismiss 

plaintiff Jennifer McCurdy's complaint pursuant to Fed. R. Civ. P. 

12 (b) ( 6) For the reasons set forth below, defendant's motion is 

denied. 

BACKGROUND 

Plaintiff owes money to The Vancouver Clinic for personal 

medical services. Compl. ~~ 16-17. On April 1, 2015, defendant sent 

a collection letter to plaintiff regarding her debt ("April 1 

Letter") Id. at ~ 18; Def.' s Mot. to Dismiss 2. There is no 

dispute the April 1 Letter was the only correspondence from 

defendant to plaintiff in this regard. Compl. ~~ 19-20. The April 

1 Letter contained the following: 

Unless you notify this office within 30 days after 

receiving this notice that you dispute the validity of 

this debt or any portion thereof, this office will assume 

this debt is valid. If you notify this office in writing 

within 30 days after reci ving this notice that you 

dispute the validity of this debt or any portion thereof, 

this off ice will obtain verification of the debt or 

obtain a copy of a judgment and mail you a copy of such 

judgment or verification. If you request of this office 

in writing within 30 days after receiving this notice 

this office will provide you with the name and address of 

the original creditor, if different from the current 

creditor. 

Notice: If your payment is returned unpaid we may charge 

you a fee up to the maximum allowed by your state. 

If you dispute any account referenced in this letter, 

please send all information regarding the dispute to P.O. 

Box 70127, Springfield, OR 97475. 

Id. at ~ 18 & Ex. A. 

Page 2 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 2 of 10
Plaintiff filed this action alleging defendant's request to 

mail information regarding a disputed debt violates the Fair Debt 

Collection Practices Act ( "FDCPA") , 15 U.S. C. §§ 1692 et seq., 

because it overshadows or is inconsistent with a consumer's right 

to dispute a debt, and because it amounts to an attempt to collect 

a debt by false or deceptive means. 1 Defendant moves to dismiss 

both claims under Fed. R. Civ. P. 12 (b) (6) 

STANDARD 

A complaint must be dismissed for "failure to state a claim 

upon which relief can be granted." Fed. R. Civ. P. 12 (b) (6). To 

survive a motion to dismiss, the complaint 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) For the 

purposes of the motion to dismiss, the complaint is liberally 

construed in favor of the plaintiff and its allegations are taken 

as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). 

Bare assertions, however, that amount to nothing more than a 

"formulaic recitation of the elements" of a claim "are conclusory 

and not entitled to be assumed true." Ashcroft v. Igbal, 556 U.S. 

662, 680-81 (2009). Rather, to state a plausible claim for relief, 

the complaint "must contain sufficient allegations of underlying 

1 Plaintiff also seeks to represent a class of people who 

received the same or similar letter. Because defendant does not 

address class allegations in its motion to dismiss, this Opinion 

and Order does not address the class allegations. 

Page 3 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 3 of 10
facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 

1202, 1216 (9th Cir. 2011). 

DISCUSSION 

I. First Claim: The April 1 Letter Overshadows or is 

Inconsistent with Notice of a Consumer's Right to Dispute a 

When sending a notice of debt to a consumer, a debt collector 

("collector") must include, in either the initial communication or 

a written notice sent within five days of the initial 

communication, 2 the following: 

(1) the amount of the debt; 

(2) the name of the creditor to whom the debt is owed; 

(3) a statement that unless the consumer, within thirty 

days after receipt of the notice, disputes the validity 

of the debt, or any portion thereof, the debt will be 

assumed to be valid by the debt collector; 

(4) a statement that if the consumer notifies the debt 

collector in writing within the thirty-day period that 

the debt, or any portion thereof, is disputed, the debt 

collector will obtain verification of the debt or a copy 

of a judgment against the consumer and a copy of such 

verification or judgment will be mailed to the consumer 

by the debt collector; and 

(5) a statement that, upon the consumer's written request 

within the thirty-day period, the debt collector will 

provide the consumer with the name and address of the 

original creditor, if different from the current 

creditor. 

2 In this opinion, "notice" refers to any correspondence 

subject to the requirements of 15 U.S.C. § 1692g(a), whether in 

the form of an initial communication or subsequent written 

notice. 

Page 4 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 4 of 10
15 U.S.C. § 1692g(a). 

The FDCPA prohibits any collection activities during the 

thirty-day window that "overshadow or [are] inconsistent with the 

disclosure of the consumer's right to dispute the debt," including 

statements in the notice itself. Id. at§ 1692g(b). A notice is 

inconsistent with the disclosure of a consumer's right when it 

contains contradictory language about the consumer's right to 

dispute the debt. Monokrousos v. Computer Credit, Inc. , 98 4 F. 

Supp. 233, 234 (D. Or. 1997) (notice containing the required 

statement of the consumer's right, in combination with a statement 

implying the consumer had less than the thirty-day window to 

dispute the debt, was contradictory) . 

In determining if language overshadows or is inconsistent with 

the notice, the Ninth Circuit uses the "least sophisticated 

consumer" standard. Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 

1222, 1225 (9th Cir. 1988). The "least sophisticated consumer" is 

one who is "uninformed, naive, and gullible." Adams v. David B. 

Schumacher, PC, 2014 WL 6977695, *8 (D. Or. Dec. 9, 2014) 

(citations omitted). Therefore, collection activities violate 

section 1692g when they "threaten or encourage the least 

sophisticated [consumer] to waive his statutory right to challenge 

the validity of the debt." Terran v. Kaplan, 109 F.3d 1428, 1434 

(9th Cir. 1997). 

A consumer may dispute a debt orally or in writing. Camacho v. 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 5 of 10
Bridgeport Fin., Inc., 430 F. 3d 1078, 1082 (9th Cir. 2005) ("The 

plain language of [15 U.S.C. § 1692g(a) (3)] indicates that disputes 

need not be made in writing.") Additionally, when disputing a debt, 

a consumer does not need to provide supporting materials. Sambor v. 

Omnia Credit Servs., Inc., 183 F. Supp. 2d 1234, 1240 (D. Haw. 

2002) (the collector's request for "suitable dispute documentation" 

violated section 1692g(a) (3) because it implied that a consumer's 

dispute of debts must be supported by documentation) . 

It is undisputed the April 1 Letter contained the required 

language informing plaintiff of her right to dispute the debt. 

Compl. ~~ 18, 21; Def.'s Mot. to Dismiss 5. The parties disagree, 

however, on the effect of the letter's final sentence (hereafter, 

"additional language"), which states, "[i]f you dispute any account 

referenced in this letter, please send all information regarding 

the dispute to P.O. Box 70127, Springfield, OR 97475." Plaintiff 

alleges this additional language "overshadows" and "fails to 

explain an apparent contradiction that [the defendant's] letter 

creates regarding statutorily mandated disclosures." Compl. ~ 22. 

In its motion to dismiss, defendant asserts this language "does 

nothing to threaten or encourage the least sophisticated consumer 

to waive his/her statutory right to challenge the validity of the 

debt." Def.'s Mot. to Dismiss 5. The Court disagrees and finds the 

additional language overshadows or is inconsistent with notice of 

a consumer's right to dispute a debt. 

Page 6 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 6 of 10
Defendant urges the Court to interpret the additional language 

as a "polite request for information" and "an invitation to 

[p]laintiff to work with [defendant] to resolve any dispute that 

may or may not exist." Def.'s Mot. to Dismiss 6. While true that 

some consumers might agree with defendant's interpretation, the 

FDCPA requires the additional language be interpreted from the 

perspective 

sophisticated 

of the least sophisticated consumer. 

consumer could read the additional 

The least 

language to 

require a consumer intending to dispute a debt to do so in writing 

and to submit justification for the dispute. In other words, the 

least sophisticated consumer would be encouraged to waive her right 

to challenge the validity of the debt by a phone call or without 

providing justification for contesting the debt. 

Defendant argues it is permissible to imply a consumer must 

dispute a debt in writing. Riggs v. Prober & Raphael, 681 F.3d 1097 

(9th Cir. 2012); Def.' s Reply Br. in Supp. of Def.' s Mot. to 

Dismiss 2. Riggs, however, is factually distinguishable from the 

present case. In Riggs, the collection notice contained the 

required statement of a consumer's right to dispute a debt, but 

simply reversed the order in which it stated the consumer's rights. 

Riggs, 681 F.3d at 1102-03 (collector "more or less simply 

reverse [ d] the order of [section] 1692g (a) ( 3) - ( 5)" which, when read 

in reverse, "could be [interpreted] to imply that a debtor must 

dispute her debt in writing"). The Riggs court reasoned any 

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Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 7 of 10
confusion over how to dispute a debt thus "stem[med] at least in 

part from the FDCPA itself". Id. at 1103. 

Unlike the collector in Riggs, defendant has not merely 

reorganized the required statutory language. Instead, defendant has 

added additional language suggesting a debt must be contested in 

writing and with supporting documentation. Therefore, the confusion 

created by the April 1 Letter does not stem from the FDCPA itself, 

but rather from defendant's inclusion of the additional language. 

Riggs does not entitle defendant to dismissal. Because defendant's 

additional language overshadows or is inconsistent with the notice 

as it contains contradictory information about the consumer's right 

to dispute the debt, defendant's motion to dismiss the first claim 

for relief is denied. 

II. Second Claim: The April 1 Letter Uses False, Deceptive, or 

Misleading Representation or Means When Collecting a Debt 

In addition to prohibiting statements that overshadow or are 

inconsistent with a consumer's right to dispute a debt, the FDCPA 

proscribes the use of "false, deceptive, or misleading" 

representations by debt collectors for any communications-not only 

initial communications-attempting to collect a debt. 15 U.S.C. § 

1692e(10); Dorsey v. David B. Schumacher, P.C., 2015 WL 569958, *4 

(D. Or. Feb. 11, 2015) (citing Gonzales v. Arrow Fin. Servs., LLC, 

660 F.3d 1055, 1062 (9th Cir. 2011)). The FDCPA is a strict 

liability statute, and thus proof of a collector's intent to use 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 8 of 10
false, deceptive, or misleading representation or means when 

collecting a debt is not required. Gonzales, 660 F.3d at 1061. 

Like section 1692g, section 1692e(10) uses the least 

sophisticated consumer standard. Guerrero v. RJM Acquisitions LLC, 

4 99 F. 3d 92 6, 934 (9th Cir. 2 007) . If the least sophisticated 

consumer would likely be misled by the debt collector's 

communication, the communication violates section 1692e(10). Id.; 

see also Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 

1119 (9th Cir. 2014). When determining section 1692e(10) liability, 

courts are concerned with "genuinely misleading statements that 

frustrate a consumer's ability to intelligently choose his or her 

response." Tourgeman, 755 F.3d at 1119 (quoting Donohue v. Quick 

Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010)). 

Plaintiff alleges the April 1 Letter "constitutes a false 

representation or deceptive means to collect or attempt to' collect 

[a] debt" because the additional language misleads the consumer 

into believing he or she may only dispute the debt in writing and 

with supporting documentation. Compl. ~ 61; Pl.'s Opp'n to Def.'s 

Mot. to Dismiss 12-13. Defendant fails to offer any substantive 

legal arguments in support of its position. Rather, defendant 

asserts because plaintiff's section 1692e (10) and section 1692g 

claims are premised on the same facts, if the court determines 

"[p] laintiff failed to state a claim upon which relief can be 

granted in [the section 1692g claim], the Court must similarly 

Page 9 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 9 of 10
dismiss [the section 1692e(l0) claim]." Def.'s Mot. to Dismiss 6-7. 

Defendant offers no additional support for this argument. Def.'s 

Reply Br. in Supp. of Def.'s Mot. to Dismiss 4. 

For the same reasons defendant's additional language 

overshadows or is inconsistent with notice of a consumer's right to 

dispute a debt, the additional language would likely mislead the 

least sophisticated consumer into thinking a dispute of all or part 

of a debt would need to be in writing and accompanied by supporting 

documentation. Therefore, the additional language in the April 1 

Letter is misleading and frustrates a consumer's ability to 

intelligently decide on a response, thus violating section 

1692e(l0). For these reasons, defendant's motion to dismiss the 

second claim for relief is denied. 

CONCLUSION 

Defendant's Motion to Dismiss (doc. 7) is DENIED. 

IT IS SO ORDERED. 

Dated this of October 2015. 

Ann Aiken 

United States District Judge 

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Case 6:15-cv-01498-AA Document 11 Filed 10/30/15 Page 10 of 10