Seventh Circuit Holds Debt Collector Did Not Violate FDCPA by Sending Motion Papers Directly to Represented Debtor in Compliance with State Rules

The United States Court of Appeals for the Seventh Circuit recently reversed a district court’s decision granting a debtor’s motion for summary judgment and held that the defendant debt collector did not violate the Fair Debt Collection Practices Act (“FDCPA”) by sending motion papers directly to the debtor when the debtor was represented by an attorney who had not filed a notice of appearance.  See Holcomb v. Freedman Anselmo Lindberg, LLC, 2018 WL 3984544 (7th Cir. Aug. 21, 2018).  In the case, the debtor defaulted on her credit card, and the defendant debt collector filed an action against her.  Although the debtor initially appeared pro se, she later retained an attorney who sent the debt collector a letter informing the debt collector of the representation.  Nonetheless, the attorney did not file an appearance with the court, although he did attend two hearings on the debtor’s behalf.  The debt collector later moved for a default judgment and served the motion papers on both the attorney and the debtor.  The debtor then brought this action alleging a violation of the FDCPA, which prohibits a debt collector from directly contacting a consumer who is represented by counsel “[w]ithout the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction.”  See 15 U.S.C. 1692c.  The debt collector responded by arguing that Rule 11 of the Illinois Supreme Court Rules states that “[i]f a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party,” and that the attorney’s failure to file a notice of appearance meant the debt collector was required to serve the motion papers on the debtor.  The district court rejected this argument as “hyper-technical” and granted the debtor’s motion for summary judgment.

On appeal, the Seventh Circuit reversed.  The Court found that Illinois courts have clearly established that “a lawyer can become an attorney of record within the meaning of Rule 11 only by filing a written appearance or other pleading with the court,” and that attorneys who “simply represent[]” parties without filing a notice are not attorneys of record under Rule 11.  As such, Rule 11 expressly required that the debt collector here serve its papers on the debtor directly.  Thus, although the debt collector contacted the debtor directly, it had the “express permission of a court of competent jurisdiction” via the Court Rules and fell into the FDCPA’s safe harbor, and the Court found that the debt collector did not violate the FDCPA.

For a copy of the decision, please contact Michael O’Donnell at, Michael Crowley at, or Dylan Goetsch at