The United States Court of Appeals for the Eleventh Circuit recently held that a debt collector’s letter to a debtor’s attorney in which the debt collector omitted the term “in writing” violated the Fair Debt Collection Practices Act (“FDCPA”). See Bishop v. Ross Earle & Bonan, P.A., 2016 WL 1169064 (11th Cir. Mar. 25, 2016). In the case, the debt collector sent a letter to a debtor’s attorney that stated, in part, that the debtor had thirty days to dispute the validity of the debt at issue. The letter did not, however, state that this dispute must be in writing pursuant to the FDCPA. See 15 USC 1692g (requiring “a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt”). The debtor filed a putative class action against the debt collector, arguing, inter alia, a violation of 15 USC 1692g. The debt collector filed a motion to dismiss, which the District Court granted. On appeal, the Eleventh Circuit reversed. First, it rejected the argument that a communication with the debtor’s attorney was not subject to the FDCPA, finding that a debtor who retains an attorney does not forfeit their protections under the law. Second, it refused to accept the debt collector’s claim that the omission of the “in writing” requirement simply allowed the debtor an alternative method of disputing the debt, holding that the provisions of section 1692g are requirements that the debt collector may not waive, regardless of whether it makes the verification process easier on the debtor. Finally, though it acknowledged that other circuit courts have held that communications with attorneys are held to a less rigorous standard than the usual “least sophisticated debtor” standard, it found that this standard would not apply in cases in which the debt collector made a misrepresentation of law or fact, as here.
For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.
