The U.S. Court of Appeals for the Seventh Circuit has ruled that the Fair Debt Collection Practices Act (FDCPA) does not bar a debt collector from continuing to contact the debtor’s attorney to seek payment after the collector receives notice from the debtor to cease communications.

In Tinsley v. Integrity Financial Partners, Inc., decided on February 11, 2011, the Seventh Circuit rejected the debtor’s claim that the debt collector violated the FDCPA by calling his attorney to request payment after he had exercised his FDCPA right to stop communications from the collector. The FDCPA provides that, with limited exceptions, a debt collector must discontinue communications with a debtor if the debtor has notified the collector in writing that the consumer refuses to pay a debt or wants the debt collector to cease further communications with the debtor.

The Seventh Circuit’s decision, which effectively overrules a 2010 decision by an Illinois federal district court that accepted the debtor’s argument, should be helpful to debt collectors facing a similar argument in cases pending in federal courts outside of the Seventh Circuit.

The debtor’s principal argument in Tinsley was that the collector’s communication to his attorney should be treated as a communication with the debtor because his attorney was his agent. According to the debtor, this argument was consistent with the FDCPA’s definition of  “communication.” Because that term is defined as “the conveying of information regarding a debt directly or indirectly to any person through any medium,” the debtor contended that anything said by a debt collector to a debtor’s attorney was an indirect communication to the debtor.

Affirming the district court’s grant of summary judgment in favor of the debt collector, the Seventh Circuit observed that the debtor’s reading would cause “serious problems for the structure and operation of” other FDCPA provisions. According to the Court, replacing the word “lawyer” with “consumer,” either because a lawyer is a “consumer” or a communication to a lawyer is an indirect communication to a debtor, would make it illegal for a debt collector to communicate either with the debtor or his lawyer once a collector knew that a debtor had a lawyer. In the Court’s view, that would be an “implausible understanding” of the FDCPA provision that requires a debt collector who knows a debtor is represented by an attorney to communicate only with the attorney.

The Court also noted that the debtor’s reading would deny meaning to the FDCPA provision regarding communications with third parties that allows a debt collector to communicate with a debtor’s attorney, whether or not the debtor or a court has approved in advance. Finally, the Court found that the debtor’s reading was not supported by the FDCPA’s definition of “consumer,” which does not include the debtor’s lawyer.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). Members of the Group regularly counsel clients on compliance with state and federal debt collection laws and regularly defend significant individual cases and class actions challenging collection practices of creditors and debt collectors. For more information, please contact group Chair Alan S. Kaplinsky, 215.864.8544 or kaplinsky@ballardspahr.com; Vice Chair Jeremy T. Rosenblum, 215.864.8505 or rosenblum@ballardspahr.com; John L. Culhane, Jr., 215.864.8535 or culhane@ballardspahr.com; Martin C. Bryce, Jr., 215.864.8238 or bryce@ballardspahr.com; Barbara S. Mishkin, 215.864.8528 or mishkinb@ballardspahr.com; or Mark J. Furletti, 215.864.8138 or furlettim@ballardspahr.com.

 


 

 

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