[hannah]

Bonnie Kuehn opened an Amicus FSB Bank Credit Card account at some point prior to 2002. In late 2002, Amicus FSB ceased all electronic banking operations in the United States and sent letters to all account holders, including Kuehn, informing them that effective Jan. 1, 2003, their credit cards would be deactivated and their accounts closed.

In August 2003, Cadleway Properties Inc. purchased Amicus FSB credit card accounts that contained outstanding balances, including Kuehn's. Cadleway Properties was a purchaser of third party debts and engaged in debt collection activities. Cadleway Properties did not have any employees. Instead, Cadleway Properties contracted with the Cadle Co. to lease employees on an as-needed basis to perform debt collection and other services.

When Cadleway Properties, Cadle or any of its other related companies initiated debt collection activities, their first communication with the debtor was through a dunning letter, known as the "Hello Letter." This letter informed the debtor that the debt had been purchased, gave the new account number for the debt, and notified the debtor of where future payments were to be made.

A Hello Letter dated Jan. 13, 2004, was sent to Kuehn. The letter informed her that her Amicus Bank credit card account had been purchased by Cadleway Properties, and that all future payments should be sent to Cadleway Properties. The letter provided Kuehn with a new account number of 0K131033, and listed the "total amount due" on her account as $7,643.23. The letter also instructed her to read an attached notice, which stated her rights under the FDCPA to obtain further information or to dispute her debt. The letter also contained provision:

"Also enclosed is an IRS-generated W-9 to certify your Tax Identification Number (TIN). For individuals, this is your Social Security Number. Please complete this form indicating the above account number, and sign and return it to us as soon as possible. You are subject to a $50 penalty imposed by the IRS under 26 U.S.C. §6723 if you fail to furnish a TIN."

A W-9 form, entitled "Request for Taxpayer Identification Number and Certification" was attached to the back of Kuehn's Hello Letter.

Kuehn brought a putative class action against Cadleway Properties Inc., alleging the Jan. 13, 2004, letter violated the FDCPA. After the district court permitted Kuehn to engage in limited discovery to determine, in part, the relationship between Cadleway Properties and Cadle, she filed an amended complaint dismissing Cadleway Properties and substituting Cadle as the sole defendant. All of Kuehn's FDCPA violations related to Cadle's statements concerning the IRS and W-9 form. Kuehn moved for partial summary judgment and the motion granted in part and denied in part.

The federal district court held the Hello Letter did not violate §1692e(9) but did violate §1692e(10) of the FDCPA. In order to prevail on her FDCPA claim, Ms. Kuehn must prove that: (1) she has been the object of collection activity arising from a consumer debt; (2) Cadle is a debt collector as defined by the FDCPA; and (3) Cadle has engaged in an act or omission prohibited by the FDCPA. [cites]. There appears to be no real dispute that Ms. Kuehn has satisfied the first two prongs of this test. The dispute is over whether Cadle's actions violated the FDCPA's prohibition against the use of "false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. §1692e.

The Eleventh Circuit has adopted the "least sophisticated consumer" standard to analyze claims of deception or misrepresentation under §1692e. [cite]. This objective standard analyzes whether a hypothetical least sophisticated consumer would be deceived or misled by the debt collector's practices.

Section 1692e(9) of the FDCPA prohibits "[t]he use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval." Ms. Kuehn argues that by including a statement in the Hello Letter that failure to provide a taxpayer identification number may result in a $50 fine from the IRS, and by attaching a copy of a W-9 form, Cadle falsely implied that the IRS authorized Cadle to send the Hello Letter and obtain taxpayer identification numbers, and/or that the IRS was somehow involved in the collection of Ms. Kuehn's debt. Even when viewed from the perspective of the "least sophisticated consumer," the Court cannot accept such a broad reading of this portion of the Hello Letter.

Ms. Kuehn next argues that the sentence "you are subject to a $50 penalty imposed by the IRS under 26 U.S.C. §6723 if you fail to furnish a TIN" and the inclusion of a W-9 form with the Hello Letter violates §1692e(10). That provision prohibits "[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." §1692e(10). Ms. Kuehn argues that the section of the Hello Letter and attachment at issue falsely implies that if she does not provide her social security number to Cadle as soon as possible, the IRS will immediately levy a $50 penalty against her. Applying the least sophisticated consumer standard, the Court agrees.

Even though Cadle's statements are technically correct, the fact that they are made at such an early stage in the debt collection process, and do not explain the purpose behind obtaining such information, renders them misleading in violation of §1692e(10).

Because the Court finds that a least sophisticated consumer would feel threatened that she would suffer a $50 penalty if she did not comply with Cadle's request as soon as possible, the Court concludes as a matter of law that Cadle's Hello Letter violates §1692e(10). Accordingly, Ms. Kuehn is entitled to summary judgment on this claim.

It appears that an appropriate award of statutory damages to encompass violations of §1692e(10) is $750.00.

KUEHN v. THE CADLE CO. INC., No. 04-0432 (U.S. District Court, Middle District of Florida Apr. 6, 2007)
Case attached.

PS. I've never heard it called a "Hello Letter" before.

[Enigma]

A person is only required to respond to a company or individual requesting that a W-9 be completed for:

Purpose of Form
Form W-9 (Rev. 11-2005)
Part I
Part II

Under penalties of perjury, I certify that:
U.S. person. Use Form W-9 only if you are a U.S. person
(including a resident alien), to provide your correct TIN to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
3. I am a U.S. person (including a U.S. resident alien).
A person who is required to file an information return with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.