Tuesday, October 23, 2007
Ind. Decisions - 7th Circuit issues opinion today on Fair Debt Collection Practices Act
In Evory v. RJM Acquisitions (a combined opinion where SD Ind. Judge Hamilton authored two of the decisions, the other two cases are out of Illinois), a 17-page opinion, Judge Posner writes:
We have consolidated for decision four intertwined cases that present nine questions under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., several of which have engendered considerable controversy at the circuit level and even some circuit splits. We shall first try to answer the questions and then indicate the disposition of each of the appeals that follows from our answers.
Here are the questions:
1. Whether, if the consumer (as the statute refers to the putative debtor) is represented by a lawyer, a debt collector must give the same written notice to the lawyer that section 1692g would require were the consumer unrepresented and the notice sent directly to him.
2. Whether communications to lawyers are subject to sections 1692d through 1692f, which forbid harassing, deceptive, and unfair practices in debt collection. Compare Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007), answering yes, with Guerrero v. RJM Acquisitions LLC, No. 05-15121, 2007 WL 2389825 (9th Cir. Aug. 23, 2007) (per curiam), and Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002), both answering no.
3. Whether, if the answer to question 2 is yes, the standard applicable to determining whether a representation is false, deceptive, or misleading under section 1692e is the same whether the representation is made to the lawyer or to his client.
4. Whether a settlement offer contained in a letter from the debt collector to a consumer is lawful per se under section 1692f. Compare Lewis v. ACB Business Services, Inc., 135 F.3d 389, 398-400 (6th Cir. 1998) (yes), with Goswami v. American Collections Enterprise, Inc., 377 F.3d 488, 495 (5th Cir. 2004) (no).
5. If it is not per se lawful, whether its lawfulness should be affected by whether it is addressed to a lawyer, rather than to the consumer directly.
6. Whether there should be a safe harbor for a debt collector accused of violating section 1692e by making such an offer.
7. Again, if such a letter is not per se lawful, what type of evidence a plaintiff must present to prove that a settlement offer violates section 1692e.
8. Whether the determination that a representation is or is not false, deceptive, or misleading under section 1692 is always to be treated as a matter of law. Compare McMillan v. Collection Professionals, Inc., 455 F.3d 754, 759 (7th Cir. 2006); Taylor v. Cavalry Investment, LLC, 365 F.3d 572, 575 (7th Cir. 2004), and Walker v. National Recovery, Inc., 200 F.3d 500, 502, 504 (7th Cir. 1999) (no), with Wilson v. Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir. 2000), and Terran v. Kaplan, 109 F.3d 1428, 1432-33 (9th Cir. 1997) (yes).
9. Whether, if that determination is not always a matter of law, nevertheless a charge under section 1692e can sometimes be dismissed on the pleadings on the ground that the challenged representation was, as a matter of law, not false or misleading.
Posted by Marcia Oddi on October 23, 2007 12:27 PM
Posted to Ind. (7th Cir.) Decisions