The Seventh Circuit recently ruled that a strict recitation of the long relied-upon safe harbor language the Court provided in Miller v. McCalla may not be so safe.
In Boucher v. Finance System of Green Bay, Inc., the debt collector included the Miller safe harbor language verbatim, which provides in pertinent part: "[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." Plaintiff argued the debt collector violated the FDCPA despite using the Miller safe harbor language because under Wisconsin law, the collector could not legally impose "late charges and other charges."
The district court found the letter did not violate the FDCPA because it put the consumer on notice that the debt was variable (based upon the accrual of interest), and the reference to "late charges and other charges" was immaterial. Unfortunately, the Seventh Circuit reversed, finding that debt collectors are "only entitled to safe harbor protection if the information [they] furnish is accurate" and they "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."
The decision will apply to letters sent before the new decision.
Though Boucher is based, in part, on Wisconsin law, we expect it to trigger nationwide litigation. Our Chicago office has already received some new lawsuits based upon Boucher. This case is a terrible reminder that we can't take established case law for granted.► Back to News & Resources