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FDCPA v. Attorneys

The Fair Debt Collection Practices Act (“FDCPA”) prevents debt collectors, inter alia, from engaging in abusive, deceptive, and unfair debt collection practices. The FDCPA has specific provisions regarding debt collection activities aimed directly at consumer – i.e. communicating with a consumer while they are represented by counsel with respect to the debt. However, what about indirect communications? The term “debt collector” is defined by the FDCPA, in part, as “any person […] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” What exactly is an indirect communication for purposes of the FDCPA? The law is not exactly clear (to debt collector advocates). To consumer advocates, it is clear. The clarity came from a July 2014 Eleventh Circuit opinion in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), where the court ruled that the filing of a time-barred proof of claim in a bankruptcy proceeding is considered conduct that is deceptive, misleading, unconscionable, or unfair under the FDCPA. Moreover, the court held that “filing a proof of claim is the first step in collecting a debt in bankruptcy and is, at the very least, an ‘indirect’ means of collecting a debt. Id. Also, there happens to be a Supreme Court decision that held that an attorney could be deemed a debt collector in certain circumstances and the debate surrounded a letter than one attorney sent to another concerning a consumer debt. See Heintz v. Jenkins, 514 U.S. 291 (U.S. 1995).

The court in Crawford analyzed the test used to determine whether a debt collection activity is unfair or deceptive and that test is known as the “least sophisticated consumer” standard. The standard tests whether the least sophisticated consumer, not the actual consumer at issue, would have been deceived by the debt collector’s conduct. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1173 (11th Cir.1985).

Nonetheless, there has been considerable controversy in the Southern District of Florida as to whether communications directed at a consumer’s attorney (presumably done so as to avoid a FDCPA violation for a direct communication to a consumer) can violate the FDCPA. Well, according to the Crawford court, it should. However, some courts have held that the “least sophisticated consumer” standard does not apply to attorneys because “where an attorney is interposed as an intermediary between a debt collector and a consumer, we assume the attorney, rather than the FDCPA, will protect the consumer from a debt collector's fraudulent or harassing behavior.” See Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir.2002); Holliston v. Florida Default Law Group, P.L., 2008 WL 8946060 (M.D. Fla. 2008). The Holliston court quoting Kropelnicki ruled that “[i]t makes little sense to apply [the least sophisticated consumer] standard to a debtor's attorney, who is presumably not unsophisticated, but well trained and educated.”

The question left unanswered by the Holliston and Kropelnicki court, is how to explain the 11 th Circuit Crawford opinion where the court held that a bankruptcy filing was violative of the FDCPA? Also, should the “least sophisticated consumer” be applied to attorneys or simply the “least sophisticated” consumer? There are a lot of floating questions. Thus, the debate goes on.