the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11) (emphasis added). The use of the disjunctive "or" between "all communications made to collect a debt" and "to obtain information" along with the use of the conjunctive "and" between the language "that the debt collector is attempting to collect a debt" and "that any information obtained will be used for that purpose" led the Emanuel court to hold that the debt collector must inform the consumer that any information he or she provides will be used to collect the debt regardless of whether information is specifically sought. Emanuel, 870 F.2d at 808. In contrast, Section 1692g(a)(4) states that the debt collector must disclose that if the debt is properly disputed, the debt collector "will obtain verification of the debt or a copy of a judgment against the consumer" and mail it to the consumer. 15 U.S.C. § 1692g(a)(4). Section 1692g(a)(4)'s use of the disjunctive "or" between "verification of the debt" and "copy of the judgment" leads to the conclusion that the debt collector is free to choose the appropriate form of verification. If a judgment exists, the debt collector should promise to provide it. If a judgment does not exist, the debt collector must promise to provide alternative verification of the debt.
Second, the strict construction of Section 1692e(11) serves a prophylactic purpose that is irrelevant to Section 1692g(a)(4). A consumer may well volunteer information in response to a debt collection letter that does not specifically request such information. Therefore, the warning required by Section 1692e(11) serves the salutary purpose of informing the consumer that this information may be used by the debt collector to collect the debt. Requiring the debt collector to inform the consumer that it will obtain and send a copy of a non-existent judgment serves no similar salutary purpose. If the debt collector is aware that there is no judgment, both clarity and the strict language of the statute suggest that it should not confuse the consumer by directly or indirectly implying that a judgment exists.
Finally, Emanuel itself holds that "there simply is no requirement that the letter quote verbatim the language of the statute." Emanuel, 870 F.2d at 808. Here, where an exact quotation of the language of the statute would confuse rather than enlighten the consumer, no policy reason supports mandating exact quotation. A plain reading of the statute as well as plain logic compel the conclusion that a debt collector can not be required to disclose that it will furnish a copy of a judgment which does not exist. Lacy is therefore granted summary judgment dismissing the Beemans' claim to the extent that it relies on Lacy's failure to advise them that if they properly disputed the debt, Lacy would obtain and send them a copy of a judgment.
B. Overshadowing and Contradictory Language
The Beemans urge that the second paragraph of the June 23rd letter, which requests that they immediately pay their debt or communicate with Lacy to explain their failure to pay, overshadows and contradicts the validation notice contained in the third paragraph. The validation notice correctly grants the Beemans 30 days to dispute the debt but requires that they do so in writing. Lacy argues that, as a matter of law, the second paragraph of its letter does not overshadow or contradict the validation notice contained in the third paragraph. In so arguing, Lacy urges that we should require plaintiffs to show not just that the remainder of the June 23rd letter contradicts or overshadows the validation notice but also that the contradiction is a threatening one.
Section 1692g(a) requires not only that the debt collector inform the consumer of certain rights in the debt collector's first communication or within five days of that initial communication but also that the remainder of the letter containing the validation notice not contradict or overshadow the validation notice. See Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir. 1991); Swanson v. Southern Oregon Credit Ser., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988); Russell v. Equifax A.R.S., 1994 U.S. Dist. LEXIS 17101, 1994 WL 672648 * 2 (N.D.N.Y. 1994); Siler v. Management Adjustment Bureau, 1992 U.S. Dist. LEXIS 2177, 1992 WL 32333 * 2 (W.D.N.Y. 1992); Rabideau v. Management Adjustment Bureau, 805 F. Supp. 1086, 1093 (W.D.N.Y. 1992); Kizer v. American Credit & Collection 1990 WL 317475* 2 (D. Conn. 1990); Gaetano v. Payco of Wisconsin, Inc., 774 F. Supp. 1404, 1410-1411 (D. Conn. 1990). The court must use the least sophisticated debtor or consumer standard in determining whether the remainder of a collection letter overshadows or contradicts the required debt validation notice. See Graziano, 950 F.2d at 111; Swanson, 869 F.2d at 1225; Russell, 1994 U.S. Dist. LEXIS 17101, 1994 WL 672648 * 2; Siler, 1992 WL 32333, * 2; Rabideau, 805 F. Supp. at 1093. But see Gammon v. G.C. Services Limited Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994) (adopting an "unsophisticated consumer" standard). The least sophisticated consumer standard "ensures the protection of all consumers, even the naive and trusting. . . [and] protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993).
The decisions of three district courts, including one in this district, have gone beyond the contradicting or overshadowing standard articulated by the Third, Fourth and Ninth circuits and adopted a threatening contradiction standard. See Russell, 1994 U.S. Dist. LEXIS 17101, 1994 WL 672648 at * 2-3; Burns v. Accelerated Bureau of Collections of Virginia, Inc., 828 F. Supp. 475, 476 (E.D. Mich. 1993); Smith v. Financial Collection Agencies, 770 F. Supp. 232, 237 (D. Del. 1991). Because we believe these cases represent an inappropriate extension of the circuit level authority, we respectfully decline to adopt their reasoning. Of the three cases, Smith offers the most detailed rationale for requiring a threatening contradiction rather than simply a contradiction between the validation notice and the remainder of the letter and thus also offers the best opportunity for a critical analysis of Lacy's argument.
The Smith court read Swanson as requiring that a contradiction between the validation notice and the remainder of a debt collection letter be threatening in order to constitute a violation of Section 1692g. Smith, 770 F. Supp. at 237. We disagree. Although the Ninth Circuit commented that the letter it reviewed did contain a threatening contradiction this finding was not essential to its holding. Swanson, 869 F.2d at 1226. The court clearly stated that:
the notice Congress required must be conveyed effectively to the debtor. It must be large enough to be easily read and sufficiently prominent to be noticed --even by the least sophisticated debtor. Furthermore, to be effective, the notice must not be overshadowed or contradicted by other messages or notices appearing in the initial communication from the collection agency.