| Communications with a Consumer’s Attorney One of the purposes of the Fair Debt Collection Practices Act (FDCPA) is to protect consumers from abusive and deceptive debt collection practices. Under Section 805(a)(2) of the FDCPA, when a debt collector learns an attorney represents a consumer, the collector is required to cease communication with the consumer and instead communicate with the consumer's attorney. A question recently raised in the Seventh Circuit deals with whether a consumer's attorney has a cause of action based on an alleged violation of the FDCPA in a communication between the collector and the attorney. The court held “any written notice sent to the lawyer must contain the information that would be required by the Act if the notice were sent to the consumer directly.” The court reasoned regardless of the fact that the communication went to the consumer's attorney, the consumer would still be entitled to the information, such as the amount of the debt and the name of the creditor. The court also found false representations made to an attorney actionable. The court held that while a sophisticated person is less likely to be misled, it can be as difficult for a lawyer to uncover a false statement as it is for a consumer. Conversely, the court did not find deceptive acts actionable under the FDCPA when made to a consumer's attorney because “a representation by a debt collector would be unlikely to deceive a competent lawyer, even if he is not a specialist in consumer debt law.” Courts around the country have addressed the issue inconsistently. The Fourth Circuit found communications with a consumer's attorney are actionable, noting that under Section 805(a)(2) of the FDCPA, communications with a consumer's attorney are “communications” as defined and regulated by the FDCPA. A Florida district court held communications sent to a consumer's attorney are actionable if they violate some aspect of the FDCPA. Other courts disagree. A recent Indiana decision rejected the Fourth Circuit's position, stating the Finally, whether communications to attorneys are actionable is unclear in the Second Circuit, which stated “[w]here an attorney is interposed as an intermediary between a debt collector and a consumer, we assume the attorney, rather than the FDCPA, will protect the consumer from a debt collector's fraudulent or harassing behavior.” With this split of authority regarding communications with a consumer's attorney, it is important to err on the side of caution and comply with the FDCPA as if you were communicating directly with the consumer. This article is provided as a service of ACA International's Legal and Government Affairs Department. |
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FDCPA “does not require Section 807 [false and misleading representations] . . . be applied to a debtor's lawyer.” The Ninth Circuit held that a communication sent only to a consumer's attorney is not actionable under the FDCPA. The court found a letter that included the statement “this is an attempt to collect a debt,” sent to a consumer's attorney in response to a verification request by the consumer, did not constitute continued collection in violation of the FDCPA. The court reasoned that a consumer and his attorney are not one and the same, noting a consumer's attorney is absent from the definition of “consumer” under Section 805(d) of the Act.