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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CALVIN SMITH,

Plaintiff,

vs.

CONVERGENT OUTSOURCING, INC.,

Defendant.

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20 C 4553

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Calvin Smith alleges in this putative class action that a collection letter he received from 

Convergent Outsourcing, Inc. violated the Fair Debt Collection Practices Act (“FDCPA”), 15 

U.S.C. § 1692 et seq. Doc. 1. Convergent moves under Civil Rule 12(b)(6) to dismiss the 

complaint. Doc. 12. The motion is granted in part and denied in part.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. 

Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider 

“documents attached to the complaint, documents that are critical to the complaint and referred 

to in it, and information that is subject to proper judicial notice,” along with additional facts set 

forth in Smith’s brief opposing dismissal, so long as those additional facts “are consistent with 

the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) 

(internal quotation marks omitted). The facts are set forth as favorably to Smith as those 

materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the 

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facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United 

States, 881 F.3d 529, 531 (7th Cir. 2018).

Smith fell behind on his cable bill, and the account went into default. Doc. 1 at ¶¶ 10-11. 

The cable company hired Convergent to collect the debt. Id. at ¶ 12. Convergent mailed Smith a 

letter dated August 2, 2019 attempting to collect the $355.58 balance on his account. Id. at 

¶¶ 13, 17-18; Doc. 1-1 at 2-3.

This lawsuit targets two aspects of the letter. First, the letter stated that Smith could 

“dispute the validity of th[e] debt” “in writing at PO Box 9004, Renton, WA 98057 within 30 

days from receiving this notice.” Doc. 1-1 at 3. But the letter did not mention that Convergent 

also allowed debtors to submit disputes by mail to its physical address, by fax, by email, or by 

completing a form on its website. Doc. 1 at ¶¶ 21-23. Second, the letter stated that, if Smith 

disputed the debt, Convergent would “obtain verification of the debt or obtain a copy of a 

judgment and mail you a copy of such judgment or verification.” Doc. 1-1 at 3. The letter’s 

references to a “judgment” made Smith think that there might have been a judgment entered 

against him, but in fact, as Convergent knew, there was no such judgment. Doc. 1 at ¶¶ 32-36.

Discussion

I. Section 1692g Claim

Smith first claims that Convergent’s listing only its P.O. Box as a method for submitting 

disputes, when in fact it allowed debtors to submit disputes by several other methods,

overshadowed its disclosure of his right to dispute the debt, in violation of 15 U.S.C. § 1692g. 

Doc. 1 at ¶¶ 19-30; Doc. 21 at 3-9. Section 1692g(a) requires a debt collector’s written notice to 

set forth five enumerated disclosures. The third disclosure gives the consumer 30 days in which 

to dispute the validity of the debt, or else “the debt will be assumed to be valid by the debt 

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collector.” 15 U.S.C. § 1692g(a)(3). Smith’s claim centers on the fourth disclosure, which

requires the notice to include:

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.

Id. § 1692g(a)(4).

The FDCPA requires debt collectors to make each disclosure “clearly enough that the 

recipient is likely to understand it.” Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 

321 (7th Cir. 2016) (quoting Chuway v. Nat’l Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th 

Cir. 2004)). Clarity is measured under the “‘unsophisticated consumer’ standard.” Zemeckis v. 

Glob. Credit & Collection Corp., 679 F.3d 632, 635 (7th Cir. 2012); see also Steffek v. Client 

Servs., Inc., 948 F.3d 761, 764 (7th Cir. 2020) (“We and other circuits have long interpreted 

§ 1692g to require that the mandatory disclosures be made so that they would be clearly 

understood by unsophisticated debtors.”). Under that standard, the court “evaluate[s] a 

communication ‘through the objective lens of an unsophisticated consumer who, while 

uninformed, naïve, or trusting, possesses at least reasonable intelligence, and is capable of 

making basic logical deductions and inferences.’” Steffek, 948 F.3d at 764 (quoting Smith v. 

Simm Assocs., Inc., 926 F.3d 377, 380 (7th Cir. 2019)).

Smith claims that Convergent’s letter, by identifying only its P.O. Box as a method for 

submitting disputes and failing to mention the other available methods, “overshadowed” the 

letter’s disclosure of his ability to dispute the debt. Doc. 21 at 6. Overshadowing is a specific 

type of § 1692g claim, in which the required disclosure is made but “additional language in the 

letter contradicts and ‘overshadows’ the [disclosure].” Marshall-Mosby v. Corp. Receivables, 

Inc., 205 F.3d 323, 326 (7th Cir. 2000). In 2006, Congress amended § 1692g to add an explicit 

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overshadowing provision, which states: “Any collection activities and communication during the 

30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right 

to dispute the debt.” Financial Services Regulatory Relief Act of 2006, Pub. L. No. 109-351, 

§ 802(c), 120 Stat. 1966, 2006-07 (codified at 15 U.S.C. § 1692g(b)). As the Seventh Circuit 

explained, the amendment “merely codified a rule that the courts had already instituted.” 

Zemeckis, 679 F.3d at 635 n.1 (citing Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997)); see

Bartlett, 128 F.3d at 500 (“[T]he implied duty to avoid confusing the unsophisticated consumer 

can be violated by contradicting or ‘overshadowing’ the required notice.”). So overshadowing 

claims are just a subspecies of § 1692g claims more generally.

Dismissal of a § 1692g claim on the pleadings is appropriate only “[i]f it is apparent from 

a reading of the letter that not even a significant fraction of the population would be misled by 

it.” Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572, 574 (7th Cir. 2004) (quotation marks omitted); 

see also Chuway, 362 F.3d at 948 (“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.”). Convergent contends that to be the 

case here, reasoning that because § 1692g(a)(4) does not require debt collectors to provide 

multiple means to submit a debt dispute, its “gratuitously” making available additional methods 

besides the P.O. Box cannot expose it to liability merely because its letter failed to list those 

additional methods. Doc. 13 at 6.

Convergent is correct that § 1692g does not specify the methods a debt collector must 

make available for a consumer to dispute a debt. But neither does it permit a debt collector to 

impose hurdles not found in the statute to submitting a dispute. The Seventh Circuit has held, for 

instance, that a debt collector may not ask a consumer to give a reason for opening a dispute

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under § 1692g(a)(4). See DeKoven v. Plaza Assocs., 599 F.3d 578, 582 (7th Cir. 2010) (“[T]he 

consumer can, without giving a reason, require that the debt collector verify the existence of the 

debt before making further efforts to collect it.”). District courts have applied this principle to 

allow FDCPA challenges to various extra-statutory requirements imposed by debt collectors. 

See Mikolajczyk v. Universal Fid., LP, 2017 WL 706301, at *3-4 (E.D. Wis. Feb. 22, 2017) 

(denying a motion to dismiss a § 1692g(a) claim where the debt collector’s notice required the 

debtor to give a reason for the dispute); Whitten v. ARS Nat’l Servs., Inc., 2002 WL 1050320, at 

*4 (N.D. Ill. May 23, 2002) (granting summary judgment to the debtor on an overshadowing 

claim where the debt collector’s letter required the debtor to provide “[s]uitable dispute 

documentation”); Frey v. Satter, Beyer & Spires, 1999 WL 301650, at *5 (N.D. Ill. Apr. 30, 

1999) (denying a motion to dismiss where the debt collector’s letter required the debtor to 

“indicat[e] the nature of the dispute”).

It thus would have been unlawful for Convergent to tell Smith that he could submit his

dispute only by mail to the P.O. Box, because the statute imposes no such limit and Convergent 

in fact made available other delivery methods. Granted, the letter does not use the word “only”; 

rather, it reads: “If you notify this office in writing at [the P.O. Box] ... this office will obtain 

verification of the debt ... .” Doc. 1-1 at 3. Technically, the letter does not state that the P.O. 

Box is the sole method available to submit a dispute. A logician’s or grammarian’s reading is 

not the standard, however—the question is whether “a significant fraction of the population” 

could potentially read the letter to (incorrectly) limit the method of submitting a dispute. Taylor, 

365 F.3d at 574.

The court cannot reject that possibility as a matter of law on the pleadings. In everyday

speech, people often use a statement in the form “if X, then Y” to mean “Y only if X.” “If the 

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weather is warm, we’ll go to the park.” “If you study hard, you’ll pass the test.” Those

statements might reasonably be read to imply that the first clause is a necessary condition of the 

second. Here, it is likewise plausible that an unsophisticated consumer might conclude from 

Convergent’s letter that mail to the P.O. Box is a necessary condition for submitting a dispute, a 

message that, if received, would be incorrect—as there were several other available methods—

and thereby overshadow the letter’s disclosure in violation of § 1692g(a)(4) and (b). The 

overshadowing claim cannot be dismissed at this stage.

II. Section 1692e and 1692f Claims

Smith’s second and third claims focus on this sentence from Convergent’s letter: “this 

office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of 

such judgment or verification.” Doc. 1-1 at 3; see Doc. 1 at ¶¶ 31-46. As Smith concedes, 

Doc. 1 at ¶¶ 41-43, this language mirrors the disclosure required by § 1692g(a)(4). See 15 

U.S.C. § 1692g(a)(4) (requiring that a collection letter include a statement that “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”). 

Smith nevertheless contends that where, as here, no judgment exists, it is misleading under

§ 1692e and unfair under § 1692f to include the “judgment” portion of that disclosure in a

collection letter. Doc. 21 at 9-15.

Section 1692e prohibits a debt collector from using “any false, deceptive, or misleading 

representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e; see 

Ruth v. Triumph P’ships, 577 F.3d 790, 799-800 (7th Cir. 2009). This provision, essentially a 

“rule against trickery,” Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 473 

(7th Cir. 2007), sets forth “a nonexclusive list of prohibited practices” in sixteen subsections, 

McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1019 (7th Cir. 2014). Although “a plaintiff 

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need not allege a violation of a specific subsection in order to succeed in a § 1692e case,” Lox v. 

CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012), Smith invokes subsections (2)(A) and (5), which 

proscribe, respectively, “[t]he false representation of ... the character, amount, or legal status of 

any debt,” 15 U.S.C. § 1692e(2)(A), and “[t]he threat to take any action that cannot legally be 

taken or that is not intended to be taken,” id. § 1692e(5). Section 1692f, meanwhile, proscribes 

the use of “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C.

§ 1692f. As with § 1692g claims, the unsophisticated consumer standard governs claims under 

§§ 1692e and 1692f. See Steffek, 948 F.3d at 765 (“Across all the [FDCPA’s] protections, we 

evaluate a communication through the objective lens of an unsophisticated consumer ... .”) 

(quotation marks omitted); Bravo v. Midland Credit Mgmt., Inc., 812 F.3d 599, 603 (7th Cir. 

2016) (“[W]ith regard to ‘false, deceptive, or misleading representations’ in violation of § 1692e 

of the FDCPA, the standard is ... whether the debt collector’s communication would deceive or 

mislead an unsophisticated, but reasonable, consumer ... .”). Because Smith’s § 1692e and 

§ 1692f claims rest on the same premise—that Convergent’s letter falsely implied there was a 

judgment against him—they rise or fall together.

As the Seventh Circuit explained in Ruth, statements alleged to be false or misleading 

under § 1692e fall into three categories. See 577 F.3d at 800. The first category consists of 

statements that are “plainly, on their face, ... not misleading or deceptive. In these cases, [the 

court] do[es] not look to extrinsic evidence to determine whether consumers were confused. 

Instead, [the court] grant[s] dismissal or summary judgment in favor of the defendant based on 

[its] own determination that the statement complied with the law.” Ibid. The second category 

consists of statements that “are not plainly misleading or deceptive but might possibly mislead or 

deceive the unsophisticated consumer. In these cases, ... plaintiffs may prevail only by 

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producing extrinsic evidence, such as consumer surveys, to prove that unsophisticated consumers 

do in fact find the challenged statements misleading or deceptive.” Ibid. The third category 

consists of statements that are “so clearly confusing on [their] face[s] that a court may award 

summary judgment to the plaintiff on that basis.” Id. at 801.

Smith’s claims based on use of the phrase “this office will obtain verification of the debt 

or obtain a copy of a judgment” fall into the first category, making dismissal appropriate based 

on the letter’s text alone. Even an unsophisticated consumer “is capable of making basic logical 

deductions and inferences.” Steffek, 948 F.3d at 765. Here, the basic inference from the text is

that Convergent would obtain either verification of the debt or a copy of a judgment, depending 

on which circumstance obtained. That is how ordinary English speakers, sophisticated or not,

use the word “or.” Also significant is the use of the phrase “a judgment,” as opposed to “the

judgment.” No formal education is needed to understand that the indefinite article “a” leaves 

unaddressed whether or not a judgment exists.

The relevant subsections of § 1692e prohibit “false representation” or a false “threat to 

take any action.” 15 U.S.C. § 1692e(2), (5). The language Convergent used plainly does 

neither. Only an “an ingenious misreading” of the letter conjures any deception here. White v. 

Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000). As a result, the letter is neither misleading nor

unfair as a matter of law.

It is also significant that this part of Convergent’s letter made a disclosure required by 

§ 1692g(a)(4) using language practically identical to the language of the statute itself. Smith’s 

position would therefore impose liability on Convergent under § 1692e for using precisely the 

language that Congress instructed it to use in § 1692g. Such an interpretation is to be avoided if 

possible. See Beeler v. Saul, 977 F.3d 577, 585 (7th Cir. 2020) (“We interpret statutes as a 

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symmetrical and coherent regulatory scheme, and fit, if possible, all parts in an harmonious 

whole.”); Roberts v. Fed. Hous. Fin. Agency, 889 F.3d 397, 403 (7th Cir. 2018) (“[W]ith any 

statute, we avoid a reading that would render its provisions inconsistent or redundant.”). 

Conflict can easily be avoided here under the eminently justifiable assumption that an 

unsophisticated consumer would understand the words “or” and “a” in their normal senses.

Resisting this conclusion, Smith points to Boucher v. Finance System of Green Bay, Inc., 

880 F.3d 362 (7th Cir. 2018), which concerned a debt collector’s duty under §§ 1692g(a)(1) and 

1692e(2) to accurately disclose the amount of the debt. In an earlier decision, Miller v. McCalla, 

Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000), the Seventh 

Circuit drafted “safe harbor” language for debt collectors to use when making that disclosure. 

214 F.3d at 876. Boucher held, however, that debt collectors retain an independent duty to 

ensure that the Miller safe harbor language is accurate and non-misleading: “[A]lthough the 

Miller language is not misleading or deceptive on its face, it may nevertheless be inaccurate 

under certain circumstances.” 880 F.3d at 370.

Smith contends that, under Boucher, Convergent’s use of statutory language in its letter 

does not, by itself, insulate it from liability. Doc. 21 at 10. But there is a fundamental difference 

between a judicial interpretation of a statute—like the Miller safe harbor language—and the 

statutory text. As Boucher explained, “our judicial interpretations cannot override the statute 

itself, which clearly prohibits debt collectors from making false and misleading 

misrepresentations.” 880 F.3d at 370. Thus, as Boucher held, the judicial gloss articulated in 

Miller had to give way to the statute itself in circumstances where the two came into conflict. 

Here, Smith asks the court impose liability on Convergent under §§ 1692e and 1692f for using 

language that Congress required in § 1692g. As noted, such a conflict between different 

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statutory provisions is to be avoided if possible, and it can be avoided here by applying the 

ordinary, non-technical meaning of the phrase “obtain verification of the debt or obtain a copy of 

a judgment” in Convergent’s letter.

Conclusion

Convergent’s motion to dismiss is granted as to the §§ 1692e and 1692f claims. The 

dismissal of those claims is with prejudice, as the court can discern no amendment that would 

cure the flaw those claims. See Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 

(7th Cir. 2018) (“Nothing in Rule 15, nor in any of our cases, suggests that a district court must 

give leave to amend a complaint where a party does not request it or suggest to the court the 

ways in which it might cure the defects. To the contrary, we have held that courts are within 

their discretion to dismiss with prejudice where a party does not make such a request or 

showing.”); Gonzalez-Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015) (“A district court acts 

within its discretion in ... dismissing a complaint with prejudice ... when the plaintiff fails to 

demonstrate how [an] amendment would cure the deficiencies in the prior complaint.”). The 

motion is denied as to the § 1692g claim. Convergent shall answer the surviving portions of the 

operative complaint by May 18, 2021.

April 27, 2021 ____________________________________

United States District Judge

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