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COURT HOLDS COMMUNICATIONS WITH ATTORNEY SUBJECT TO FDCPA

The United States District Court for the Northern District of Illinois in Startare v. Credit Bureau of North America, LLC, recently held that Section 1692c(c) of the federal Fair Debt Collection Practices Act, which governs ceasing communications, applies to communications with either a consumer or a consumer’s attorney. 2010 WL 2220583 (N.D. Ill. June 3, 2010).

In Startare, the plaintiff allegedly owed a debt to American General Financial that was being collected by the defendant Credit Bureau of North America, LLC. After being contacted by the defendant, Startare contacted a Chicago legal clinic for legal representation. Startare claimed that an attorney from the legal clinic sent a letter to the defendant advising them that Startare was represented by an attorney, that she refused to pay the debt and that she wished the defendant to cease communicating with her. Startare claimed that despite receiving that letter, the defendant continued its collection activities by contacting the legal clinic and demanding payment of her debt. Startare claimed that an additional letter was sent repeating the request to cease communications, but that the defendant continued to contact the legal clinic and demand payment. Startare alleged a violation of Section 1692c(c) of the federal Fair Debt Collection Practices Act.

Section 1692c(c) generally prohibits further communication with a “consumer,” except in certain limited circumstances, once the consumer has notified the debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer. In considering whether Section 1692c(c) prohibits a debt collector from communicating with a debtor’s attorney after the consumer has notified the debt collector that the consumer refuses to pay, the court relied on an earlier ruling by the United States Court of Appeals for the Seventh Circuit in Evory v. RAM Acquisitions Funding, LLC, 505 F.3d 769 (7th Cir. 2007), which held that a debt collector is communicating with a consumer within the meaning of the FDCPA when the debt collector communicates with the consumer’s attorney. The court rejected the defendant’s argument that Evory did not apply because it was decided in the context of Sections 1692e-f, not Section 1692c(c) under consideration in Startare, finding nothing in Evory to suggest that its reasoning would not apply to Section 1692c(c).

The court also rejected the defendant’s statutory construction argument that “consumer” does not include a consumer’s attorney because it is not defined under Section 1692c(d) to include a consumer’s attorney. In looking at Sections 1692c(c) and 1692c(d) in the context of the FDCPA as a whole and in light of the congressional purpose of the FDCPA, the court found that the FDCPA itself seems to contemplate that a consumer’s attorney necessarily stands in as a proxy for the consumer. The court found that the defendant’s communication with the legal clinic representing the plaintiff did not involve any of the communications specifically permitted under Section 1692c(c), rather they involved continued attempts to collect the debt in violation of that section.

Startare illustrates that those collecting debts may need to limit their communications to those permitted by the FDCPA when speaking not only to a debtor, but also to a debtor’s attorney. Please feel free to contact us if you would like a copy of this case.

  • Margaret Stolar and Chuck Gall