D.N.J. Finds Including Writing Requirement in Validation Notice is Permissive, Not Mandatory, Under Graziano

On June 3, 2019, a judge in the District of New Jersey found that Graziano v. Harrison, 950 F.2d 107 (1991), the Third Circuit decision that spawned the high volume of lawsuits faced by debt collectors today, does not require disputes to be in writing.

In Smallwood v. Alltran Fin. LP, No. 19-cv-1394 (D.N.J. June 3, 2019), defendant sent a collection letter to the plaintiff. The letter included a validation notice that tracked the statutory language of section 1692g of the Fair Debt Collection Practices Act (FDCPA). Plaintiff sued, arguing that the validation notice's use of the word "if" in the second sentence does not inform the consumer that a 1692g dispute must be in writing as allegedly required by Graziano.

The court granted defendant’s motion to dismiss. The judge found that the defendant included everything required by the statute in its validation notice, going so far as to include the following comparison chart between 1692g’s requirements and the language of the letter:

Most notably, the court disagrees with the plaintiff that Graziano requires disputes made under section 1692g to be in writing. First, the court mentions that the discussion of written disputes in Graziano was in the dicta (discussion) rather than in the court’s ruling. Second, the court states:

[The Graziano] court never stated that a validation notice must convey a writing requirement. Rather, in Graziano the debt collector included an explicit writing requirement in the first sentence of its validation notice, and the plaintiff challenged the requirement’s inclusion. The Third Circuit disagreed and approved the validation notice stating that the inclusion was permissible because a dispute must be in writing. That a validation notice may contain a writing requirement does not mean that it must. But this is the gravamen of Smallwood’ s claim. Her challenge to the Letter under Graziano fails.

(Emphasis added; internal citations omitted.)

The court found further support for this interpretation through post-Graziano decisions where the Third Circuit approved validation notices that likewise tracked the statutory language of section 1692g. These decisions include Wilson v. Quadramed Corp., 225 F.3d 350 (3d Cir. 2000) and Jewsevkyj v. Fin. Recovery Servs., Inc., 704 F. App’x 145 (3d Cir. 2017).

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