In Carlin v. Davidson Fink, LLP, 2017 WL 1160887, at *5–7 (C.A.2, 2017), the Court of Appeals for the Second Circuit said that a letter that sought unspecified “fees, costs, additional payments, and/or escrow disbursements” that were not yet due at the time the statement was issued violated the FDCPA.
The remaining inquiry is whether Davidson Fink adequately stated the amount of the debt in the August Letter, as required by § 1692g. We conclude that it did not. The Payoff Statement included a “Total Amount Due,” but that amount may have included unspecified “fees, costs, additional payments, and/or escrow disbursements” that were not yet due at the time the statement was issued. The Payoff Statement indicated that any such fees would accrue by August 14, 2013 (the date on which the Payoff Statement became void), and that if payment of the “Total Amount Due” was made prior to August 14, Carlin would receive a refund in the amount of the unaccrued fees. When determining whether a debt collector has violated § 1692g’s notice requirements, we consider how the “least sophisticated consumer” would interpret the notice. See Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996) (citing Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). We ask whether “the notice fails to convey the required information ‘clearly and effectively and thereby makes the least sophisticated consumer uncertain’ as to the meaning of the message.” DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001) (quoting Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998)). Thus, even if a debt collector accurately conveys the required information, a consumer may state a claim if she successfully alleges that the least sophisticated consumer would inaccurately interpret the message. It is unclear whether Davidson Fink’s notice accurately conveys the required information. The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction … , whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). The Seventh Circuit has expressed doubt that “debt” includes unaccrued court costs or attorney fees. See Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003). But the Payoff Statement does not specify what the “estimated fees, costs, [and] additional payments” are, and thus we cannot say whether those amounts are properly part of the amount of the debt.2 If Davidson Fink improperly included fees and costs that it was not entitled to under the note (absent a judgment), the Payoff Statement would plainly be insufficient under § 1692g. The least sophisticated consumer standard we use to interpret the legal effect of FDCPA notices supports this conclusion. Absent fuller disclosure, an unsophisticated consumer may not understand how these fees are calculated, whether they may be disputed, or what provision of the note gives rise to them. Because the statement gives no indication as to what the unaccrued fees are or how they are calculated, she cannot deduce that information from the statement. We do not hold that a debt collector may never satisfy its obligations under § 1692g by providing a payoff statement that provides an amount due, including expected fees and costs. But a statement is incomplete where, as here, it omits information allowing the least sophisticated consumer to determine the minimum amount she owes at the time of the notice, what she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase. We are not ignorant of the safe-harbor statement we formulated in Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016). There, we held: “[A] debt collector will not be subject to liability under Section 1692e for failing to disclose that the consumer’s balance may increase due to interest and fees if the collection notice either accurately informs the consumer that the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date.” 817 F.3d at 77. However, the Payoff Statement only expresses that the Total Amount Due may include estimated fees and costs. There is no clarity as to whether new fees and costs are accruing or as to the basis for those fees and costs. Notices such as the Payoff Statement here may very well be commonplace in the debt collection industry. But the FDCPA does not insulate a debt collector from liability merely because others in the industry engage in the same practice. It is no great chore for Davidson Fink and other debt collectors to revise their standard payoff statements to clarify the actual amount due, the basis of the fees, or simply some information that would allow the least sophisticated consumer to deduce the amount she actually owes.