Tenth Circuit Rules Fax Requesting Employment Information Is Not Communication Under FDCPA
On December 21, 2011, the Tenth Circuit held that a facsimile sent to a debtor’s workplace requesting information about the debtor’s employment status is not a “communication” triggering liability under the Fair Debt Collection Practices Act (FDCPA). The Court affirmed dismissal of Plaintiff-Appellant’s FDCPA claims, finding that a facsimile that does not convey information “regarding a debt” does not fall within the ambit of the FDCPA’s prohibition against debt-collector communications with third parties. The Court also affirmed an award of costs to Defendant-Appellee under Rule 54(d).
The Tenth Circuit held that the facsimile sent by a debt collector to the debtor’s employer was not a “communication” under the FDCPA because it did not indicate to the recipient that it relates to the collection of a debt. Indeed, the facsimile only discussed verification of employment, thus the Court held it could not reasonably be construed to imply a debt. The Court also noted that there was no testimony or evidence indicating that Appellant suffered any actual harm or that her employer was aware that the facsimile concerned a default on her student loan. Accordingly, the Court found that the facsimile could not form the basis of liability under the FDCPA.
Further, the Court affirmed award of costs to GRC under Rule 54(d), holding that Section 1692k(a)(3) of the FDCPA does not supersede Rule 54(d), thus a prevailing defendant may be entitled to costs even where there is no evidence that the plaintiff brought the FDCPA claim in bad faith.
A copy of the opinion can be accessed here: Marx v. General Revenue Corp., No. 10-1363 (10th Cir. Dec. 21, 2011).
Please do not hesitate to contact John Lynch, Ethan Ostroff, or Liz Flowers if you have questions.