The United States Court of Appeals for the Third Circuit recently held that a debt collector has the burden of proving that its contact with third parties regarding the debtor fell into a statutory exception under the Fair Debt Collection Practices Act (“FDCPA”).  See Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355 (3d Cir. 2015).  Under the FDCPA, a debt collector may not contact a third party unless it is “for the purpose of acquiring location information about the consumer” and may not contact the third party more than once “unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.”  15 USC 1692b.  In the case, a debt collector repeatedly contacted a debtor’s daughter and neighbors regarding a debt that the debtor owed.  In most of the calls, the debt collector did not seek location information but instead simply asked that a message be relayed to the debtor to call the debt collector.  The debtor sued, and the case proceeded to trial, where the judge instructed the jury that the debt collector carried the burden of proving it fell into this exception.  The jury found the debt collector did not meet its burden and, instead, that it violated the FDCPA.  The debt collector appealed, arguing that the plaintiff carried the burden of proving all the elements of her case, and this burden included proving that the debt collector did not meet the proper FDCPA requirements for contacting third parties.  In a matter of first impression, the Third Circuit affirmed, noting the “longstanding convention” that “a party seeking shelter in an exception . . . has the burden to prove it,” the consumer-protection purpose of the FDCPA and the fact that only the debt collector had access to relevant facts regarding its communications with third parties all support the lower court’s decision that the debt collector carries this burden.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.