In Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268 (11th Cir. 2016), the Eleventh Circuit, addressing three issues of first impression, held that (1) a collection notice sent to a debtor’s attorney was a “communication with a consumer” within the meaning of § 1692g of the Fair Debt Collection Practices Act (“FDCPA”); (2) the collection letter’s omission of the requirement that a dispute be made “in writing” violated the FDCPA and could not simply be deemed a waiver by the creditor of the “in writing” requirement; and (3) the communication at issue could constitute “false, deceptive, or misleading” behavior and must be judged under a “least sophisticated consumer” standard, not a “competent lawyer” standard.
Connie Bishop’s attorney received a letter from the lawyer for Ms. Bishop’s homeowners’ association stating that Ms. Bishop owed $2,000 in fines for failing to clean her roof and paint her house. The letter told Ms. Bishop that she had 30 days within which to dispute the debt, but failed to include the requirement, stated in § 1692g of the FDCPA, that the dispute be “in writing.” Ms. Bishop filed a complaint against the law firm and attorney who sent the letter, alleging that the letter violated § 1692g and also constituted a “false representation or deceptive means to collect or attempt to collect any debt,” prohibited by FDCPA § 1692e. The district court dismissed the complaint for failure to state a claim.
The Eleventh Circuit reversed. First, the court considered whether the communication at issue, which had been sent to Ms. Bishop’s attorney, constituted a “communication with a consumer” under the FDCPA. The court had previously held, in Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1294 (11th Cir. 2015), that “abusive, misleading, and unfair” collection practices, when directed to a consumer’s attorney, are covered by the FDCPA absent an express exemption. With respect to the letter to Ms. Bishop’s attorney, the court looked to the FDCPA provision at issue, § 1692g, which governs an “initial communication with a consumer,” and to the FDCPA’s definition of “communication”: “the conveying of information regarding a debt directly or indirectly to any person through any medium.” The letter to Ms. Bishop’s attorney was an “indirect” communication with Ms. Bishop and therefore covered by § 1692g.
Second, the court held that the letter’s omission of the required statement that a dispute be “in writing” could be actionable under the FDCPA. The court found no basis to find that a collector has discretion to omit the “in writing” requirement: “This Court will not judicially fashion a ‘waiver remedy’ for violations of § 1692g when the FDCPA identifies civil liability as the remedy for noncompliance.” 817 F.3d at 1274.
Third, the court found that omission of the “in writing” requirement could constitute “false, misleading, or deceptive” behavior prohibited by § 1692e, holding that “[n]either the ‘competent lawyer’ nor the ‘least sophisticated consumer’ could be said to have notice of the ‘in writing’ requirement after receiving a letter like the one alleged.” Id. at 1277. But the court declined to adopt a “competent lawyer” standard for evaluating the communication, noting that the Seventh and Tenth Circuits, which have adopted a “competent lawyer” standard for evaluation of some FDCPA claims—those raising the question whether a disclosure has to announce itself as a “disclosure,” for example—have not applied the “competent lawyer” standard to alleged misstatements of fact: “We see no basis in the FDCPA to treat false statements made to lawyers differently from false statements made to consumers themselves.” Id.
Posted by Valerie Sanders.