In Miljkovic v Shafritz & Dinkin, 2015 WL 3956570, a panel of the 11th Circuit held that representations made by an attorney in required court filings during the course of debt collection litigation can be actionable under the FDCPA. This was a question of first impression for the 11th Circuit and appears to be at odds with a prior decision from the Eighth Circuit.

However, despite ultimately determining that the collection attorneys did not violate the FDCPA through the specific pleading at issue in the case, the 11th Circuit rejected the district court’s analysis limiting the scope of the FDCPA and denied that there was any sort of general litigation exception under the statute. In reaching its holding, the court anchored its decision in Heintz v. Jenkins, 514 U.S. 291 (1995), where the U.S. Supreme Court held that the FDCPA applied to the litigation activities of collection attorneys. Unfortunately, the 11th Circuit’s holding overlooks the fact that the actual conduct in Heintz did not involve a required pleading, but rather, a settlement letter sent by the creditor’s attorney to the defendant debtor after the matter was placed in suit.

The 11th Circuit panel also seems to have assumed that Heintz covers all litigation activities by collection attorneys, despite the fact that Justice Breyer’s opinion in Heintz discussed the outlines of an exception to the FDCPA for “court related documents.” Justice Breyer wrote:

“We agree with Heintz that it would be odd if the Act empowered a debt-owing consumer to stop the ‘communications’ inherent in an ordinary lawsuit and thereby cause an ordinary debt collecting lawsuit to grind to a halt. But, it is not necessary to read §1692c(c) in that way–if only because that provision has exceptions that permit communications ‘to notify the consumer that the debt collector or creditor may invoke’ or  ‘intends to invoke’ a ‘specified remedy’ (of a kind ‘ordinarily invoked by [the] debt collector or creditor’). §§1692c(c)(2), (3). Courts can read these exceptions, plausibly, to imply that they authorize the actual invocation of the remedy that the collector ‘intends to invoke.’ The language permits such a reading, for an ordinary court related document does, in fact, ‘notify’ its recipient that the creditor may ‘invoke’ a judicial remedy. Moreover, the interpretation is consistent with the statute’s apparent objective of preserving creditors’ judicial remedies. We need not authoritatively interpret the Act’s conduct regulating provisions now, however. Rather, we rest our conclusions upon the fact that it is easier to read §1692c(c) as containing some such additional, implicit, exception than to believe that Congress intended, silently and implicitly, to create a far broader exception, for all litigating attorneys, from the Act itself. (Emphasis supplied.)  515 US 291, at 296-297.”

The Eighth Circuit previously remarked that the discussion above in Heintz necessitates “careful crafting” by judges when examining the litigation activities of collection lawyers. Hemmingsen v. Messerli & Kramer P.A., 674 F.3d 814, 819 (8th Cir. 2012). Indeed, the discussion in Hemmingsen reflected on the difficult problems of interpretation that Heintz created for the circuit courts:

“Heintz answered the question whether the FDCPA applies to a lawyer who regularly collects consumer debts through litigation. But the circuit courts have struggled to define the extent to which a debt collection lawyer’s representations to the consumer’s attorney or in court filings during the course of debt collection litigation can violate §§ 1692d-f. See, e.g., O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 944 (7th Cir. 2011), cert. denied, 181 L. Ed. 2d 1017 (2012); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031-33 (9th Cir. 2010); Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 593-94 (6th Cir. 2009); Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769, 774-75 (7th Cir. 2007); Sayyed v.Wolpoff& Abramson, 485 F.3d 226, 234 (4th Cir. 2007). The difficulties are not surprising because, as the Supreme Court explained in Heintz, Congress in repealing the lawyer exemption did not modify the FDCPA’s ‘conduct-regulating provisions,’ which may create anomalies demonstrating a need for  ‘additional, implicit, exception[s]’ to implement ‘the statute’s apparent objective of preserving creditors’ judicial remedies.’ 514 U.S. at 296-97; see Jerman, 130 S. Ct. at 1622 (‘those [conduct regulating] provisions should not be assumed to compel absurd results when applied to debt collecting attorneys’). 674 F.3d at 818.”

The 11th and Eighth Circuits now appear to be at odds on the same basic point–the extent to which regular, required activities in litigation by collection attorneys should be subject to the FDPCA. Indeed, a recent federal district court opinion has already cited the 11th Circuit case as precedent. This could set the stage for this issue eventually surfacing before the U.S. Supreme Court. In the meantime, the regulation of attorneys who file documents and make routine appearances in court on behalf of creditors remains in a state of uncomfortable uncertainty.

Attorneys in Ballard Spahr’s Consumer Financial Services Group regularly advise clients on compliance with the FDCPA and state debt collection laws and defend clients in FDCPA lawsuits and enforcement matters.

For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, Christopher J. Willis at 678.420.9436 or willisc@ballardspahr.com, Gary W. Becker at 678.420.9464 or beckerg@ballardspahr.com or Stefanie H. Jackman at 678.420.9490 or jackmans@ballardspahr.com.

 


 

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