Seventh Circuit Affirms Dismissal of FDCPA Claim Against Debt Collector for Communicating Directly With Debtor's Counsel
On February 11, 2011, the Seventh Circuit Court of Appeals, in an opinion authored by Chief Judge Easterbrook, affirmed a district court’s grant of summary judgment in ruling that a debt collector does not violate 15 U.S.C. § 1692c(c) by communicating directly with counsel representing a debtor. The complaint alleged that, after the attorney was engaged by the debtor, the attorney sent a cease and desist letter to the collection agency on behalf of the debtor pursuant to section 1692c(c). After receipt of the letter, the debt collector continued to communicate directly with the attorney in connection with collecting on the debt. The debtor then sued, alleging that the debt collector cannot contact the attorney directly without violating section 1692c(c).
After acknowledging this is the first time this issued has reached a court of appeals, the Seventh Circuit held that section 1692c(c) is limited to those persons who fall under the definition of “consumer” found in 15 U.S.C. § 1692c(d), which does not include “the debtor’s lawyer.” The Court also recognizes that interpreting section 1692c(c) to include “the debtor’s lawyer” would “throw a monkey wrench into ordinary pre-litigation discussions between lawyers.” It further notes that Congress could not have intended the hiring of a lawyer to prohibit the debtor and the debt collector to communicate through counsel.
The Court also noted, based on its decision in Evory v. RJM Acquisitions Funding, L.L.C., 505 F.3d 769, 773 (7th Cir. 2007), that the definition of “communication” found in 15 U.S.C. § 1692a(2) nonetheless requires that communications sent to a debtor’s lawyer must contain the same information that is required to be in communications sent directly to the debtor. As a result, collectors are free to communicate directly with debtors’ counsel, but must ensure their communications comply with the other requirements of the FDCPA (e.g., the validation of debt requirements found in 15 U.S.C. § 1692g).
A copy of the court’s opinion is attached here. Tinsley v. Integrity Financial Partners, Inc., No. 10-2045 (7th Cir. Feb. 11, 2011) (Easterbrook, C.J.).
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