Page 15 - John Hundley 2012

Sharp Thinking

No. 63 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. May 2012

FDCPA Prohibits Wide Range of Misconduct

Harassment, Abuse, Misleading Representations, “Unfair Practices” All Prohibited

As noted in the last issue of Sharp Thinking, the Fair Debt Collection Practices Act (15 U.S.C. §§ 1692
et seq.) (“FDCPA”) contains a plethora of provisions regulating how “debt collectors” may go about
collecting “debts” within the meaning of the act. In this issue we will summarize those provisions.

The Initial Contact. The collector must give the debtor certain information concerning the debt, in
writing, as part of the first communication if that communication is in writing, and within five days after the
initial communication if it is oral. This notice must state: (1) the amount of the debt; (2) name of the
creditor to whom the debt is owed; (3) that the collector will assume the debt to be valid unless the
consumer within 30 days disputes the validity of the debt or a portion thereof; (4) that if the consumer
claims in writing within the 30 days that the debt, or a
portion thereof, is disputed, the collector will obtain
verification of the debt or a copy of a judgment and mail a
copy of such to the consumer; and (5) that, upon written Second of three issues on the
request within the 30-day period, the collector will provide Fair Debt Collection Practices Act.
the name and address of the original creditor, if different
from the current creditor. §1692g(a). If the consumer
notifies the collector in writing during the 30-day period
that the debt (or a portion) is disputed, he must cease collection of the debt (or the disputed portion) until
he obtains verification of the debt or a copy of a judgment and mails same to the debtor. Similarly, if the
consumer during the 30-day period requests the name and address of the original creditor, the collector
must cease collection until he has mailed that information to the consumer. Section 1692g(a) does not
prohibit collection efforts within the 30 days if the debtor has not responded, however. Durkin v. Equifax

Check Serv., 406 F.3d 410 (7th Cir. 2005).

Litigation Common. Most litigation under § 1692g(a) has involved communications which
included the statutorily-required information, but in a way that was confusing or in the context of other
inconsistent material which allegedly “overshadowed” the statutory information.
See McKinney v. Cadleway Props., 548 F.3d 496 (7th Cir. 2008); Zemeckis v.
Global Credit & Collec. Corp., No. 11-2334 (7th Cir. May 11, 2012). Because in
this circuit confusion issues generally are weighed under the standard of an
unsophisticated consumer (McMillan v. Collection Professionals, 455 F.3d 754
(7th Cir. 2006); Sims v. GC Serv., 445 F.3d 959 (7th Cir. 2006); Veach v.
Sheeks, 316 F.3d 690 (7th Cir. 2003)), the collector who attempts to hide the statutory information or
1
“pump up” the amount owed runs a risk of being liable. However, confusion of the hypothetical
unsophisticated consumer generally must be proven by scientific survey results, with the burden on
plaintiff. See DeKoven v. Plaza Assoc., 599 F.3d 578 (7th Cir. 2010); Muha v. Encore Receivable Mgmt.,

1 The “amount of the debt” to be disclosed is the amount past due, not the overall balance, or the amount that may become due if litigation
results. Barnes v. Advanced Call Center Tech., LLC, 493 F.3d 838 (7th Cir. 2007). The notice need not break out the amount owed among
various elements (principal, interest, etc.), and if it does an error in apportioning the total among the elements will not violate the act if the total
is correct. Hahn v. Triumph P’ships, 557 F.3d 755 (7th Cir. 2009); Wahl v. Midland Credit Mgmt., 556 F.3d 643 (7th Cir. 2009).

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
advice on your particular situation, contact a Sharp lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.