Page 14 - John Hundley 2012

Cadleway Props., Inc., 548 F.3d 496 (7th Cir. 2008); Shula v. Lawent, 359 F.3d 489 (7th Cir. 2004).
There is a major caveat to that principle, however: a creditor who has acquired a debt by
assignment is deemed to be a debt collector if the debt was in default when it acquired the debt.
§ 1692a(6)(F)(iii), Ruth v. Triumph P’ships, 577 F.3d 790 (7th Cir. 2009); Schlosser v. Fairbanks
Capital Corp., 323 F.3d 534 (7th Cir. 2003). Loan servicers also are generally
exempt if the loan was not in default when the assignment to them was made,
or if the loan is one which they originally made. § 1692a(6)(F); Carter v.
AMC, LLC, 645 F.3d 840 (7th Cir. 2011). Another caveat is that when one
uses a name other than one’s own in a way that suggests that a third person
is attempting to collect the debt, he becomes a “debt collector” even if he
would be exempt otherwise. § 1692a(6); Catencamp v. Cendant Timeshare Resort Group-Consumer
Finance, Inc., 471 F.3d 780 (7th Cir. 2006).

Furnishing Deceptive Forms. It is unlawful to design, compile, and furnish any form knowing
that it will be used to create a false belief in a consumer that a person other than the creditor is
participating in the attempt to collect the debt. § 1692j(a). This provision applies even if one is not a
“debt collector”. Lawyers who allow others to send letters on their letterhead without meaningful
involvement by the lawyer violate this provision. Boyd v. Wexler, 275 F.3d 642 (7th Cir. 2002).

Finding The Debtor. FDCPA § 1692b provides that the collector may make certain efforts to
acquire “location information” without using the familiar legend that “this communication is from a debt
collector and any information obtained will be used for that purpose.” In fact, § 1692b prohibits that
legend, because it outlaws, among other things, use of any language or symbol that indicates
the collector is in that business or that the communication relates to a debt. Any attempt to
obtain information beyond the narrow definition of “location information” during such a contact will
violate the act.

Communications With Consumers. The act has separate terms regulating communica-
tions with “consumers” and with third parties. For this purpose “consumer” includes not just the debtor
but also the debtor’s spouse, parent (if the debtor is a minor), guardian, executor and administrator, if
any. § 1692c(d). Unless permission has been given, a collector may not communicate with a
consumer at an inconvenient place or time (generally not before 8 a.m. or after 9 p.m.), if the collector
knows the consumer is represented by an attorney (unless the attorney has been nonresponsive), or at
the consumer’s job if the collector has reason to know the employer prohibits such communications. §
1692c(a). Moreover, the collector generally must cease communication upon receipt of written
notice that the consumer refuses to pay or wishes the collector to cease communication. §
1692c(c). He may communicate with the debtor’s attorney under such circumstances, however.
Tinsley v. Integrity Fin. Ptnrs., Inc., 634 F.3d 416 (7th Cir. 2011).

Communications With Third Parties. Unless permission to do so has been given by the
debtor or a court, communications with third parties are prohibited unless (a) strictly limited to seeking
location information, (b) the communication is necessary to effectuate a post-judgment judicial remedy,
or (c) the third party is the creditor, a consumer reporting agency or an attorney. § 1692c(b).

The act contains a plethora of additional provisions regulating how debt collectors may go about
their business. We’ll explore those provisions in the next issue of Sharp Thinking.

John\SharpThinking\#62.doc
●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
THE SHARP LAW FIRM, P.C.

1115 Harrison, P.O. Box 906, Mt. Vernon, IL 62864 • Telephone 618-242-0246 • Facsimile 618-242-1170

Business Transactions • Litigation • Financial Law • Problem Finances • Real Estate • Corporate • Commercial Disputes • Creditors’ Rights •
Arbitration • Employment Matters • Estate Planning • Probate

Terry Sharp: Tsharp@lotsharp.com; John T. Hundley: Jhundley@lotsharp.com; Bentley J. Bender: Bbender@lotsharp.com.

Advertising Material