# Mayfield v. LTD Financial Services, L.P.

> District Court, S.D. Texas · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10674776

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674776

## How later opinions describe it (automated extraction)

- holding that the inclusion of the sentence “We are not obligated to renew any offers provided” at the conclusion of a collection letter “cured any misimpression that an unsophisticated consumer might have formed concerning the meaning of the settlement offers”
- concluding that “a settlement offer that states the proposed discount and the length of the offer, but does not expressly nor implicitly indicate that no other offer will be made, passes muster” under the FDCPA
- finding no FDCPA violation because the letter “did not state that [the defendant] was authorized to settle ‘only’ for 40 per cent until the specific dates mentioned, which would have injected an artificial sense of finality into the offer”

## Opinion text

UNITED STATES DISTRICT COURT September 30, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

STEVEN MAYFIELD, individually §
and on behalf of a class of similarly §
situated persons, §
§
Plaintiff. §
§
VS. § CIVIL ACTION NO. 4:20-cv-01966
§
LTD FINANCIAL SERVICES, L.P., §
§
Defendant. §

OPINION AND ORDER
Before me is a motion to dismiss filed by LTD Financial Services, L.P.
(“LTD”). See Dkt. 17. After carefully reviewing the parties’ arguments and
applicable law, and for the reasons discussed below, LTD’s motion to dismiss is
DENIED.
BACKGROUND AND PROCEDURAL HISTORY
This case arises from LTD’s attempt to collect a debt owed by the plaintiff,
Steven Mayfield (“Mayfield”). The well-pleaded facts in Mayfield’s amended
complaint are accepted as true for purposes of LTD’s motion to dismiss. See
Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir 2019).
Mayfield signed up for a credit card from First Savings Bank d/b/a First
Savings Credit Card (“First Savings”). He used the credit card to purchase personal
goods, household items, gasoline, medical-related expenses, and a vacation. Due
to personal financial difficulties, Mayfield was unable to keep up with his monthly
payments.
LTD, acting as a debt collector, sent Mayfield a two-page debt-collection
letter on June 3, 2019, the relevant portion of which is reprinted below:
This letter is from LTD Financial Services, L.P., a debt collector. This is an attempt to collect a debt and any information obtained
will be used for that purpose. Acceptance of this settlement offer, selecting a repayment option and payment by the due date will
settle this debt in full with the current creditor.
PAYMENT PLAN 1 PAYMENT PLAN 2
06/28/2019. first payment due 06/28/2019.
Successive payments are due the 28th
of each month.
YOU SAVE: YOU SAVE:
02.54 $322.02
We are not obligated to renew this offer.
You may call this office to discuss this debt at 1-877-754-0013, ask for AYOSANYA. Please refer to the reference number above.

Visit https://payments.ltdfin.com to pay online.
A Tear along dottedine “A (8000388740000
3200 Wilcrest Suite 600 LTDREF NO:
Houston, TX 77042-6000 CREDITOR ACCOUNT #: ae

Dkt. 17-1 at 1.
Mayfield did not make any payments or contact LTD to discuss the proposed
payment plans. However, Mayfield does claim that he “attempted to adjust his
finances to satisfy one of the discounted Payment Plan Options, but was unable to
do so by the identified deadline.” Dkt. 14 at 6. Mayfield further alleges that he
“reasonably assumed” that the identified due date was his deadline “to accept
either of the Payment Plan Option[s].” Id. at 4.
On June 3, 2020, Mayfield sued LTD for multiple alleged violations of the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1962 et seq. Mayfield has
since amended his complaint. In his live pleadings, Mayfield alleges that he “was
harmed in a particularized and concrete manner by the wording of the Subject
Letter because [he was] willing to attempt to pay down the Subject Debt but he
was unable to satisfy either of the discounted Payment Plan Options by the stated
due dates.” Dkt. 14 at 5. This inability to satisfy either of the payment plans,
Mayfield contends, caused him to “suffer unnecessary stress and anxiety, all of

which constituted a concrete and particularized injury prohibited by the FDCPA.”
Id. Although Mayfield does not claim that he, himself, was confused by the letter’s
offer to settle his debt “in full with the current creditor,” he argues that such an
offer violates the FDCPA “because a settlement for less than the full value of the
Subject Debt could result in a subsequent sale of the debt to a debt purchaser where
the debt purchaser could plausibly have demanded payment for the remaining
amount of the Subject Debt.” Id. at 7. Finally, Mayfield claims that he was
“confused by the manner in which [LTD] reasonably implied that the Subject Debt
would be credit reported if he accepted one of the settlement offers, where upon
information and belief, the debt was being credit reported at the time the
Collection Letter was mailed.” Id. at 6.
LTD has moved to dismiss Mayfield’s claims on two grounds. See Dkt. 17.
First, LTD contends that Mayfield lacks standing because he does not allege that
he suffered a concrete and particularized injury.1 Second, LTD argues that even if
Mayfield could clear the standing hurdle, he has failed to state a claim under the
FDCPA.
DISCUSSION
A. MAYFIELD HAS SATISFIED THE REQUIREMENTS OF ARTICLE III
STANDING

1. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) provides that a case should be
dismissed if the court does not possess subject matter jurisdiction. Subject matter
jurisdiction fails if the plaintiff lacks Article III standing. See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541–42 (1986). Therefore, when a

1 LTD addresses Article III standing through the lens of Rule 12(b)(6). However,
constitutional standing is analyzed under Rule 12(b)(1). See Harold H. Huggins Realty,
Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011) (“dismissal for lack of
constitutional standing . . . should be granted under Rule 12(b)(1)”). “Although [LTD]
mistakenly moves to dismiss for lack of constitutional standing under Rule 12(b)(6), I will
consider the request as if it were made under Rule 12(b)(1).” Shields v. Dick, No. 3:20-
CV-00018, 2020 WL 5522991, at *3 (S.D. Tex. July 9, 2020).
plaintiff lacks standing to sue in federal court, it is appropriate to dismiss the action
pursuant to Rule 12(b)(1) for want of subject matter jurisdiction. See FNC, Inc.,
634 F.3d at 795 n.2.
Standing presents a “threshold jurisdictional question” in any suit filed in
federal district court. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
(1998). The requirement that a party have standing to bring suit flows from Article
III of the Constitution, which limits the scope of federal judicial power to the
adjudication of “cases” or “controversies.” U.S. CONST. art. III, § 2. To establish
standing, a plaintiff must show that: (1) she suffered an “injury in fact”; (2) the
injury is “fairly traceable” to the challenged conduct; and (3) the injury is “likely
to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). As the party invoking federal jurisdiction, the plaintiff bears the
burden on each of these elements. Id.
An “injury in fact” is an invasion of a legally protected interest that is
concrete, particularized, and actual or imminent. See id. at 1548. A “particular”
injury is one that affects the plaintiff in a personal and individual way, while an
injury satisfies the “concrete” requirement if it “actually exist[s]”—that is, the
injury cannot be hypothetical or conjectural. Id. at 1548. See also Buchholz v.
Meyer Njus Tanick, PA, 946 F3d 855, 861 (6th Cir. 2020) (“A concrete injury is,
like it sounds, real and not abstract.” (quotation omitted)). “This does not mean,
however, that the risk of real harm cannot satisfy the requirement of concreteness.”
Spokeo, 136 S. Ct. at 1549. As the Supreme Court has explained, “although tangible
injuries are perhaps easier to recognize, . . . intangible injuries can nevertheless be
concrete.” Id. at 1549. To that end, Congress, through its legislative power, may
“identify intangible harms that meet minimum Article III requirements” and, in
doing so, “define injuries . . . that will give rise to a case or controversy where none
existed before.” Id. (quotation omitted).
For an injury to be “actual or imminent,” the plaintiff must allege either that
she has suffered a legally recognized injury or there is an impending danger or
substantial risk that she will suffer such an injury. See Summers v. Earth Island
Inst., 555 US 488, 496 (2009). Allegations of “possible future injury” are
insufficient. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (cleaned up).
2. Analysis
Only the first element to establish Article III standing is at issue between the
parties. LTD contends that Mayfield does not allege that he suffered a concrete and
particularized injury. In his scattershot response, Mayfield alleges that he suffered
a cognizable injury—emotional distress, which manifested itself in two ways.
Globally, Mayfield argues that being subjected to false or misleading debt-
collection communications can result in mental or emotional distress. More
specifically, Mayfield contends that he suffered “emotional distress over being
unable to take advantage of time-sensitive discounted settlement offers.” Dkt. 22
at 17. See also id. at 14 (“[LTD’s] time-sensitive offer harmed him where he was not
able to assemble the necessary funds to pay either of the discounted offers by the
time limits imposed by the offers.”). LTD rejects this contention, arguing that
Mayfield has not alleged a cognizable injury because he admits that he was unable
to accept the settlement options and does not claim that he would have been able
to do so had the letter not contained an acceptance deadline. I am persuaded by
Mayfield’s argument.
The Supreme Court has not addressed the issue of Article III standing under
the FDCPA. But its most recent statement on Article III’s concrete-injury
requirement dealt with analogous concepts under the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq. See Spokeo, 136 S. Ct 1540. There, the Supreme
Court held that the violation of a procedural right granted by statute can, in some
circumstances, be sufficiently concrete (even if intangible) to establish the
requisite injury in fact. Id. at 1549. See also id. (“Congress may elevate to the status
of legally cognizable injuries concrete, de facto injuries that were previously
inadequate in law.” (cleaned up)). “[A] plaintiff in such a case need not allege any
additional harm beyond the one Congress has identified.” Id. (emphasis omitted).
But, as the Supreme Court recently reiterated, Article III standing requires a
concrete injury even in the context of a statutory violation:
Congress’s creation of a statutory prohibition or obligation and a
cause of action does not relieve courts of their responsibility to
independently decide whether a plaintiff has suffered a concrete harm
under Article III any more than, for example, Congress’s enactment of
a law regulating speech relieves courts of their responsibility to
independently decide whether the law violates the First Amendment.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021).
Since Spokeo, the Fifth Circuit has twice considered Article III standing in
the context of an FDCPA claim; however, it has not directly addressed whether a
consumer bringing such a claim must establish actual damages to assert standing
or recover damages.
In its most recent decision,2 Flecha v. Medicredit, Inc., the Fifth Circuit
addressed FDCPA standing in the class-action context. 946 F.3d 762 (5th Cir.
2020). There, the plaintiff alleged that a collection agency sent her a collection
letter threatening legal action without the actual intent to follow through on the
threat. Id. at 765. The FDCPA prohibits debt collectors from threatening “to take
any action . . . that is not intended to be taken.” 15 U.S.C. § 1692e(5). Unfortunately,
the parties in that case did not dispute the class representative’s standing, and the
legal challenge turned on whether the proposed class failed certification under
Rule 23 of the Federal Rules of Civil Procedure. See Flecha, 946 F.3d at 768–69.
Still, the Court’s discussion is insightful. Namely, the Fifth Circuit observed that

2 The Fifth Circuit also addressed Article III standing in Sayles v. Advanced Recovery
Systems, Inc., 865 F.3d 246 (5th Cir. 2017). That case involved section 1692e(8), which
prohibits “[c]ommunicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including the failure
to communicate that a disputed debt is disputed.” 15 U.S.C. § 1692e(8). There, the debt
collector failed to indicate the plaintiff’s debt as disputed in notice letters to creditors. See
Sayles, 865 F.3d at 249–50. The district court found this injury to be both particularized
and concrete, and the Fifth Circuit affirmed, explaining that the debt collector’s conduct
exposed the plaintiff to “a real risk of financial harm caused by an inaccurate credit
rating.” Id. at 250.
“there [were] undoubtedly many unnamed class members . . . who lack[ed] the
requisite injury to establish Article III standing” because the putative class—all
persons in Texas who received the same form debt-collection letter—“inevitably
include[d] people who received the letter, but ignored it as junk mail or otherwise
gave it no meaningful attention.” Id. at 768.
Post-Spokeo, most courts across the country, including those in the Fifth
Circuit, have found that an alleged FDCPA violation alone is sufficient to confer
standing because it establishes that the consumer suffered the type of harm
Congress intended to prevent—abusive debt collection practices. See Smith v. Moss
Law Firm, P.C., No. 18-2449, 2020 WL 584617, at *4 (N.D. Tex. Feb. 6, 2020)
(collecting cases); Busby v. Vacation Resorts Int’l, No. H-18-4570, 2019 WL
669641, at *5 (S.D. Tex. Feb. 19, 2019) (“Most district courts in the Fifth Circuit
have denied motions to dismiss based on insufficient allegations of injury in
FDCPA cases. . . . These cases are consistent with decisions from other circuits
holding that Article III standing may be based on an alleged FDCPA violation.”).
See also Reed v. Receivable Recovery Servs., LLC, No. 16-12666, 2017 WL
1399597, at *6 (E.D. La. Apr. 19, 2017) (finding Article III standing where plaintiff
received collection letters allegedly in violation of the FDCPA). But see
Abercrombie v. Rogers, Carter & Payne, LLC, No. 15-2214, 2016 WL 8201965, at
*4–6 (W.D. La. Nov. 22, 2016) (finding no Article III injury for claim arising out of
an alleged misstatement of debtor’s rights under the FDCPA where plaintiff never
alleged that he could suffer harm as a result of the alleged misstatement);
Thompson v. Hughes, Watters & Askanase, LLP, No. 3:13-CV-0429-G BH, 2013
WL 4441979, at *9 (N.D. Tex. Aug. 20, 2013) (plaintiff’s “sparse allegations” were
subject to dismissal because the complaint did not explain how or why the
complained-of language violated the FDCPA).
Although Mayfield’s amended complaint certainly alleges that LTD’s debt-
collection letter violated the FDCPA, even under the very deferential injury-in-fact
inquiry for FDCPA claims, this case toes the line. Distilled down to its irreducible
minimum, Mayfield alleges that: (1) he received a letter from LTD that offered to
settle his debt for roughly half the amount owed if he selected one of LTD’s two
payment plans; (2) both payment plans required that he make his first (or only)
payment by June 3, 2019; (3) he believed that the due date had to be met in order
for LTD to accept either of the payment plans; (4) he tried to scrounge up the
money but was unable to do so; and (5) he suffered emotional distress from being
unable to take advantage of time-sensitive settlement offers. It is unremarkable
that Mayfield would suffer anxiety over not being able to pay his bills. Which begs
the question: Is this truly the type of harm the FDCPA was designed to prevent?
Cf. Sheriff v. Gillie, 136 S. Ct. 1594, 1603 (2016) (Section “1692e bars debt
collectors from deceiving or misleading consumers; it does not protect consumers
from fearing the actual consequences of their debts”).
Nevertheless, given the phalanx of authority on the issue, I am wary of
drawing a line in the sand, particularly at the motion to dismiss stage. The FDCPA
provides the right to receive truthful, non-misleading communications from a debt
collector. Mayfield alleges LTD’s collection letter violated this right because it
contained false, deceptive, or misleading representations. Unlike the unnamed
class members in Fletcha—some of whom the Fifth Circuit opined lacked standing
because they did not suffer a cognizable injury—Mayfield did not ignore or fail to
give the letter meaningful attention. See Fletcha, 946 F.3d at 768–69. Instead,
Mayfield alleges that he took affirmative steps to gather the resources necessary to
accept one of LTD’s settlement offers.
If more is required—that is, if Mayfield is required to connect an “additional”
concrete and particularized injury to the alleged FDCPA violation5—Mayfield
alleges that LTD’s collection letter caused him to suffer “emotional distress.” See

5 The Fifth Circuit has not directly addressed whether Article III standing requires that a
plaintiff bringing a claim under the FDCPA must allege to have suffered an injury “in
addition” to the complained-of FDCPA violation. See Ghanta v. Immediate Credit
Recovery, Inc., No. 3:16-CV-00573-O, 2017 WL 1423597, at *3 (N.D. Tex. Apr. 18, 2017).
Rideau v. Keller Indep. Sch. Dist., 819 F.3d 155, 169 (5th Cir. 2016) (“[E]motional
harm satisfies the ‘injury in fact’ requirement of constitutional standing.”). See also
Ben-Davies v. Blibaum & Assocs., P.A., 695 F. App’x 674, 676 (4th Cir. 2017)
(holding, in the context of FDCPA claim, that emotional distress is a concrete
injury sufficient to support Article III standing); Kranz v. Midland Credit Mgmt.,
Inc., No. SA-18-CV-169-XR, 2020 WL 3899223, at *6 n.9 (W.D. Tex. July 10,
2020) (emotional distress and anxiety caused by communications that allegedly
violated the FDCPA satisfied Article III’s injury-in-fact requirement); Smith, 2020
WL 584617, at *5 (“legal costs, anxiety, and worry” caused by defendant’s alleged
FDCPA violation were concrete and particularized injuries for purposes of FDCPA
claim (quotation omitted)); Edeh v. Midland Credit Mgmt., Inc., 748 F. Supp. 2d
1030, 1041 (D. Minn. 2010) (“A consumer who has suffered emotional distress has
suffered [actionable damage under the FDCPA] even if the emotional distress was
not severe.”).
Keeping in mind that courts are to construe the FDCPA broadly and in favor
of the consumer and accepting as true Mayfield’s well-pleaded allegations, I find
that Mayfield has standing to bring his claims.
B. ONE OF MAYFIELD’S CLAIMS IS PLAUSIBLE ON ITS FACE
1. Legal Standard
Rule 12(b)(6) allows parties to seek dismissal of a lawsuit for failure to state
a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6)
tests the sufficiency of the complaint against the legal standard set forth in Rule 8,
requiring “a short and plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. CIV. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp., v. Twombly, 550 U.S. 544, 570 (2007)). “Determining
whether a complaint states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
When conducting its inquiry, the Court “accept[s] all well-pleaded facts as
true and view[s] those facts in the light most favorable to the plaintiff.” Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation omitted). “[A]
well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of [the alleged] facts is improbable, and that a recovery is very remote and
unlikely.” Twombly, 550 U.S at 556 (quotation omitted). “[I]n deciding a motion
to dismiss for failure to state a claim, courts must limit their inquiry to the facts
stated in the complaint and the documents either attached to or incorporated in
the complaint.” Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.
1996).
Ultimately, a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor
and is rarely granted,” Harrington v. State Farm & Cas. Co., 563 F.3d 141, 147 (5th
Cir. 2009) (quotation omitted), particularly where the complaint alleges a
collection letter is confusing or misleading under the FDCPA. See Fiddick v. Bay
Area Credit Serv., LLC, No. 3:18-CV-00416, 2019 WL 1858824, at *3 (S.D. Tex.
Apr. 25, 2019).
2. Analysis
Congress enacted the FDCPA in response to “abundant evidence of the use
of abusive, deceptive, and unfair debt collection practices by many debt
collectors”—practices that “contribute to the number of personal bankruptcies, to
marital instability, to the loss of jobs, and to invasions of individual privacy.” 15
U.S.C. § 1692(a). Congress “clearly intended the FDCPA to have a broad remedial
scope.” Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th Cir.
2002). “The FDCPA should therefore be construed broadly and in favor of the
consumer.” Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 511 (5th
Cir. 2016). Nevertheless, I must remember that while the FDCPA “bars debt
collectors from deceiving or misleading consumers[,] it does not protect
consumers from fearing the actual consequences of their debts.” Sheriff, 136 S. Ct.
at 1603.
Section 1692e provides a non-exhaustive list of unlawful practices, including
“[t]he false representation of . . . the character, amount, or legal status of any debt,”
and “[t]he use of any false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. §
1692e(2)(A), (10). Mayfield asserts claims for relief under each of these statutory
provisions.
In the Fifth Circuit, a district court must evaluate any potential deception in
LTD’s collection letter from the perspective of an “unsophisticated” or the “least
sophisticated” consumer. McMurray v. Procollect, Inc., 687 F.3d 665, 669 (5th
Cir. 2012). For ease of reference, I refer to both standards as “unsophisticated.” See
Manuel v. Merchants & Pro. Bureau, Inc., 956 F.3d 822, 826 n.10 (5th Cir. 2020)
(explaining that the Fifth Circuit refers to the unsophisticated-consumer and least-
sophisticated-consumer standards interchangeably). In making this
determination, I “must assume that the plaintiff-debtor is neither shrewd nor
experienced in dealing with creditors.” Goswami v. Am. Collections Enter., Inc.,
377 F.3d 488, 495 (5th Cir. 2004). At the same time, I must “not consider the
debtor as tied to the very last rung on the intelligence or sophistication ladder.” Id.
(cleaned up). See also Osborn v. Ekpsz, LLC, 821 F. Supp. 2d 859, 867 (S.D. Tex.
2001) (“The unsophisticated consumer isn’t a dimwit. She may be uninformed,
naive, and trusting, but she has rudimentary knowledge about the financial world
and is capable of making basic logical deductions and inferences.” (quotation
omitted)). When determining whether a collection letter violates the FDCPA, I
must read the letter as a whole. See Peter v. GC Servs. L.P., 310 F.3d 344, 349 (5th
Cir. 2002).
The unsophisticated consumer standard is an objective test, “meaning that
it is unimportant whether the individual who actually received an allegedly
violative letter was misled or deceived.” Gomez v. Niemann & Heyer, LLP, No.
1:16-CV-119 RP, 2016 WL 3562148, at *4 (W.D. Tex. June 24, 2016). The objective
“standard serves the dual purpose of protecting all consumers, including the
inexperienced, the untrained[,] and the credulous, from deceptive debt collection
practices and protecting debt collectors against liability for bizarre or idiosyncratic
consumer interpretations of collection materials.” Taylor v. Perrin, Landry,
deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997).
“It is well-settled in the Fifth Circuit that FDCPA complaints alleging a
collection letter is confusing or misleading are rarely dismissed at the Rule 12(b)(6)
stage. This is because the inquiry under Sections 1692e . . . requires a fact-bound
determination of how an unsophisticated consumer would perceive a collection
letter.” Fiddick, 2019 WL 1858824, at *3 (collecting cases). “[B]ecause district
judges are not good proxies for the unsophisticated consumer whose interests the
FDCPA protects, district courts should be hesitant to dismiss § 1692e . . . claims.”
Carter v. First Nat. Collection Bureau, Inc., 135 F. Supp. 3d 565, 569 (S.D. Tex.
2015) (quotation omitted). “Dismissal is appropriate only when it is apparent from
a reading of the letter that not even a significant fraction of the population would
be misled by it.” Daugherty, 836 F.3d at 512 (cleaned up).
I now turn to the First Amended Complaint. Mayfield alleges that LTD’s
letter contains two misleading phrases: (1) “we are not obligated to renew this
offer”; and (2) “selecting a repayment option and payment by the due date will
settle this debt in full with the current creditor.” I find that the fist phrase is not
misleading. The second phrase, however, is arguably misleading in one respect.
a. “We are not obligated to renew this offer”
Mayfield contends that the phrase “we are not obligated to renew this offer”
violates section 1692e because it:
(1) “[E]mphasizes and amplifies the creditor’s message that it is a
time-limited offer”; and
(2) “[R]einforces the idea that if the debtor does not act immediately,
she may lose the opportunity to do so forever.”
Dkt. 22 at 4 (quoting Preston v. Midland Credit Mgmt., Inc., 948 F.3d 772, 788
(7th Cir. 2020) (Rovner, J., concurring)). These arguments fail.
Nearly every court to address time-sensitive or limited-duration settlement
offers has found no FDCPA violation absent an express statement that no other
settlement offer will be made.6 In this Circuit, however, the law governing the issue
is unsettled. The leading Fifth Circuit case addressing temporal settlement offers
by debt collectors held the following language was deceptive and in violation of the
FDCPA: “Effective immediately, and only during the next thirty days, will our client
agree to settle your outstanding balance due with a thirty percent (30%) discount

6 See Preston, 948 F.3d at 785 (holding that the inclusion of the sentence “We are not
obligated to renew any offers provided” at the conclusion of a collection letter “cured any
misimpression that an unsophisticated consumer might have formed concerning the
meaning of the settlement offers”); Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d
769, 776 (7th Cir. 2007) (explaining that the phrase “we are not obligated to renew this
offer” sufficiently informs the unsophisticated consumer that there is a renewal possibility
but that it is not assured); Fleurisst v. Mercantile Adjustment Bureau LLC, No. 20-CV-
61102-RUIZ/STRAUSS, 2021 U.S. Dist. LEXIS 155288, at *21 (S.D. Fla. Aug. 16, 2021)
(“Defendant merely stated that the offer ‘may’ expire and that Defendant was not
obligated to renew the offer. It would be unreasonable for even the least-sophisticated
consumer to infer from these statements that the offer would definitively expire or that
Defendant would not be permitted to renew the offer.”); Saraci v. Cap. Mgmt. Servs.,
L.P., No. 1:18-CV-05149 (AMD) (RER), 2019 WL 4602827, at *2 (E.D.N.Y. Sept. 23, 2019)
(similar language “satisfie[d] the ‘least sophisticated consumer’ standard, for nothing in
the letter suggests that the offer is a one-time deal”); Manning v. Elevate Recoveries, No.
4:16-CV-942-ALM-CAN, 2017 WL 5586674, at *5 (E.D. Tex. Oct. 16, 2017) (finding that
a collection letter concluding with the same sentence as LTD’s letter—“We are not
obligated to renew this offer”—was neither deceptive nor misleading); Waters v. J.C.
Christensen & Assocs., Inc., No. 08-11795-NG, 2011 WL 1344452, at *9 (D. Mass. Mar. 4,
2011) (“Not only would the least sophisticated debtor understand that the expiration of a
mere offer does not necessarily foreclose the possibility of the parties later agreeing to its
terms, but the practical consequence of holding offer letters unlawful would be to prohibit
settlement offers that are anything but the debt collector's best and final offer.” (cleaned
up) (quoting Johnson v. AMO Recoveries, 427 F. Supp. 2d 953, 957 (N.D. Cal. 2005)));
Gully v. Van Ru Credit Corp., 381 F. Supp. 2d 766, 772 (N.D. Ill. 2005) (concluding that
“a settlement offer that states the proposed discount and the length of the offer, but does
not expressly nor implicitly indicate that no other offer will be made, passes muster”
under the FDCPA); King v. Arrow Fin. Servs., LLC, No. Civ.A.02-867, 2003 WL
21780973, at *3 (E.D. Pa. July 31, 2003) (“The inclusion of a deadline for acceptance of
the settlement is merely a term of the settlement offer, and the least sophisticated
consumer would interpret it as such.”).
off your above balance owed.” Goswami, 377 F.3d at 492. The Court began its
analysis by highlighting that the statement itself was false. “In actual fact, [the
creditor] had authorized [the debt collector] to give debtors such as [the plaintiff]
a 30% discount at any time, not just for a period of thirty days.” Id. at 495. Thus,
the Court was persuaded that the statement suggesting the offer was a “one-time,
take-it-or-leave-it offer that would expire in thirty days” was untrue and intended
to push the plaintiff “to make a rapid payment to take advantage of the purported
limited time offer.” Id. Crucially, the Court explained its decision was based on the
debt collector’s “false or misleading statements” about its settlement authority
“both in the discount it was authorized to offer and the time within which [the
plaintiff] was allowed to accept the offer.” Id. at 496.
LTD’s offer letter suffers neither of these infirmities. Indeed, unlike the one-
time offer in Goswami, LTD’s letter does not give the impression that its offers
would irrevocably lapse. Several district courts have recognized this distinction
and limited Goswami’s holding to collection letters that contain objectively false
information or expressly state that an opportunity to settle the debt at a discount
will be lost after a given date.7 I agree with this interpretation. There is a difference

7 See, e.g., Bass v. Portfolio Recovery Assocs., LLC, No. 17-CV-08345, 2018 WL 4005199,
at *1–2 (N.D. Ill. Aug. 22, 2018) (finding collection letters that, for purposes of this
analysis, are equivalent to LTD’s letter—i.e., payment plans, a date by which payment
“must be received,” and a warning that the creditor is “not obligated to renew this offer”—
were distinguishable from Goswami because the letters were neither false nor
misleading); Smith v. Nat’l Enter. Sys., Inc., No. CIV-15-451-D, 2017 WL 1194494, at *4–
5 (W.D. Okla. Mar. 30, 2017) (finding Goswami unpersuasive where defendant’s “limited-
time offer” did not imply that it was the plaintiff’s only opportunity to settle or
misrepresent the defendant’s settlement authority); Pescatrice v. Nat’l Action Fin. Servs.,
Inc., No. 05-61110-CIV, 2006 WL 8432179, at *7 (S.D. Fla. Oct. 18, 2006) (letter “simply
informed Plaintiff the amount of money it was willing to accept within a particular time
period and did not suggest that other settlement offers would not be forthcoming”);
Kiliszek v. Nelson, Watson, & Assocs., LLC, No. 3:04CV2604, 2006 WL 335788, at *6
(M.D. Pa. Feb. 14, 2006) (letter did not provide that the discount would be available “only
in the next thirty days,” but rather “explained that to accept the specific offer presented
in the letter, [the plaintiff] had to ensure that [the defendant] received the money by the
deadline”); Hernandez v. AFNI, Inc., 428 F. Supp. 2d 776, 780 (N.D. Ill. 2006) (the
“letters in the instant case indicated that the current offer—‘this offer’—was available for
between a “one-time, take-it-or-leave-it” offer, as in Goswami, and a limited-
duration offer advising that the current offer is subject to expiration without
suggesting that other settlement offers would not be forthcoming. Accordingly, I
find that Goswami is not controlling in this instance and that LTD’s letter
sufficiently informs the unsophisticated consumer that LTD might renew its offers
but that renewal is not assured. Stated simply, “it is apparent from a reading of the
letter that not even a significant fraction of the population would be misled by” the
phrase “we are not obligated to renew this offer.” Daugherty, 836 F.3d at 512
(quotation omitted). Accordingly, no claim may proceed based on this phrase.
b. “selecting a repayment option and payment by the due date
will settle this debt in full with the current creditor”
Mayfield argues that the phrase “selecting a repayment option and payment
by the due date will settle this debt in full with the current creditor” is misleading
for several reasons. First, he focuses on the potential ramifications if he settled the
debt as offered. Specifically, he argues:
(1) A settlement for anything less than full value would not result in
the outstanding balance being written off by the “current creditor”;
(2) The debt-collection letter did not explain whether a settlement for
less than the full value of the Subject Debt would fully resolve the
remaining portion of the Subject Debt;

a limited time only, and contained no language that would suggest to a reasonable debtor
that this was the final offer”); Callanta v. GC Servs., No. C-05-5445 PJH, 2006 WL
1072028, at *3 (N.D. Cal. Apr. 21, 2006) (finding limited-duration offer distinguishable
from Goswami’s “take-it-or-leave-it” language); Johnson, 427 F. Supp. 2d at 956
(explaining there is a distinction between a collector’s letter making a one-time offer, as
in Goswami, and a letter stating that the current offer is subject to expiration without
indicating anything about the possibility of future offers); Gully, 381 F. Supp. 2d at 772
(finding no FDCPA violation because the letter “did not state that [the defendant] was
authorized to settle ‘only’ for 40 per cent until the specific dates mentioned, which would
have injected an artificial sense of finality into the offer”). But see Prophet v. Myers, 645
F. Supp. 2d 614, 619–20 (S.D. Tex. 2008) (determining that, “in light of the lack of
controlling authority on the issue,” the question of whether a collection letter requiring
payment “within 30 days of the date of this letter” was deceptive under the FDCPA
“cannot—and should not—be resolved on a motion to dismiss”).
(3) The objected-to phrase was reasonably and plausibly interpreted
by Mayfield to suggest that his payment of the proposed amount
would be reported to a credit reporting agency; and
(4) A settlement for less than the full value of the Subject Debt cannot
be lawfully documented or reported as a settlement of the “debt in
full.”
See Dkt. 22. at 5. See also id. at 20 (“This statement is confusing, false[,] and
misleading, because as a matter of law, settling a debt for less than the amount
owed I [sic] cannot constitute a settlement of the debt in full. While [LTD] may
have wanted to entice [Mayfield] into paying the Subject Debt by offering a
discounted payment amount as the carrot—so to speak—it was confusing, false[,]
and misleading for [LTD] to use this carrot where the time-sensitive reduced
payment amount would not have constituted a so-called settlement in full.”
(citation omitted)).
I find that these arguments miss the mark. There is nothing in the letter
regarding credit reporting, nor is there any way to interpret it as insinuating that
any settlement would be reported to a credit reporting agency, much less that it
would be reported “as a settlement of the ‘debt in full.’” See id. at 22. To the extent
that Mayfield argues that “settling a debt for less than the amount owed I [sic]
cannot constitute a settlement of the debt in full,” see id. at 20, Mayfield has failed
to cite, and the Court is not aware of, any authority supporting such proposition.
Finally, Mayfield argues the same phrase is misleading “because a
settlement for less than the full value of the Subject Debt could result in a
subsequent sale of the debt to a debt purchaser where the debt purchaser could
plausibly have demanded the remaining amount of the Subject Debt.” Id. at 5.
Mayfield’s justification for this interpretation is the letter’s use of the term “current
creditor,” which he argues an unsophisticated consumer could view as “legal
jargon” meant “to limit . . . how partial payment will be viewed by the then[-
]current creditor.” Id. at 24–25. This argument has merit.
LTD’s collection letter provides: “Acceptance of this settlement offer,
selecting a repayment option and payment plan by the due date will settle this debt
in full with the current creditor.” Dkt. 17-1 at 1 (emphasis added). Mayfield argues
the term “current creditor” could lead an unsophisticated consumer to believe
“settlement for less than the full value of the Subject Debt [with the current
creditor] could result in a subsequent sale of the debt to a debt purchaser [who]
could plausibly [demand] payment for the remaining amount of the Subject Debt.”
Dkt. 14 at 7.
As mentioned earlier, I am required to read LTD’s collection letter as a whole
to determine whether it violates the FDCPA. Although the body of LTD’s letter uses
the term “current creditor,” in the top left-hand corner, the letter reads:
“CREDITOR: FIRST SAVINGS CREDIT CARD.” Dkt. 17-1 at 1. Against this
backdrop, Mayfield’s argument is that the term “current creditor” implies there
could be other future creditors—i.e., Mayfield’s payment would only settle his
“debt in full” with First Savings. For its part, LTD emphasizes that there is no
portion remaining for which a future creditor could attempt to collect if the account
is settled “in full.”
While I have my reservations that Mayfield’s construction manipulates what
was a good-faith attempt to negotiate a lesser payment into an accusation of
mistreatment, his interpretation is not outside the realm of what an
unsophisticated consumer would understand when faced with the term “current
creditor.”
I am aware that in certain instances debt-collection letters must identify the
“original creditor” if different from the “current creditor,” see 15 U.S.C. §
1692g(a)(5), and that, in such a situation, the letter must also identify “the creditor
to whom the debt is owed”—i.e., the current creditor. See id. § 1692g(a)(2). But
First Savings is the only creditor to whom Mayfield owes a debt. Thus, in this case,
the qualifier “current” could lead an unsophisticated consumer to believe that
there may be future creditors. See Gonzales, 660 F.3d at 1062 (“[A] debt collection
letter is deceptive where it can be reasonably read to have two or more different
meanings, one of which is inaccurate.” (quoting Brown, 464 F.3d at 455)). Cf.
Anderson v. Ray Klein, Inc., No. 18-11389, 2019 WL 1568399, at *2 (E.D. Mich.
Apr. 10, 2019) (“The word ‘original,’ while making clear the ultimate source of the
debt, also suggests that there may be a non-original creditor.”); Kirkpatrick v. TJ
Servs., 379 F. Supp. 3d 539, 542 (E.D. Va. 2019) (finding that a debt-collection
letter that identified the “Original Creditor” without specifying it was also the
“current creditor” implied that “some other entity currently owns the debt”).8
****
In sum, I find that the phrase “we are not obligated to renew this offer” is
not misleading to support Mayfield’s FDCPA claim. However, I find that the phrase
“selecting a repayment option and payment by the due date will settle this debt in
full with the current creditor” is not so clear that it may be deemed FDCPA-
compliant as a matter of law.
CONCLUSION
For the reasons stated above, LTD’s motion to dismiss is DENIED.

Signed on this 30th day of September 2021.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

8 Had LTD’s letter used the descriptor “creditor” rather than “current creditor,” even the
least sophisticated consumer could not have been “misled” to believe that a subsequent
debt purchaser could demand payment of the remaining balance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674776. Public record. Not legal advice.