Lexstat 1-8 debtor-creditor law § 02 Debtor-Creditor Law



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(n89)Footnote 89. Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006) .

(n90)Footnote 90. Id. at 377 .

(n91)Footnote 91. 15 U.S.C. § 1692a(6)(F)(ii).

(n92)Footnote 92. 15 U.S.C. § 1692a(6)(F)(iii).

(n93)Footnote 93. Walker v. Michael W. Colton Trust, 33 F. Supp. 2d 585 (E.D. Mich. 1999) (a pre-default assignee was not a debt collector as it was exempt under § 1692a(6)(F)(iii)); Fischer v. Unipac Serv. Corp., 519 N.W.2d 793 (Iowa 1994) . See Orent v. Credit Bureau of Greater Lansing, Inc., 2001 U.S. Dist. LEXIS 17683 (W.D. Mich. Oct. 23, 2001) (where debt was not in default at the time of assignment, assignee was not a debt collector); Osheyack v. Garcia, 2001 Fla. LEXIS 1573 (Fla. June 13, 2001) (local telephone company that billed and collected charges for long distance carrier was not debt collector since it acquired debt and commenced its collection activity prior to default).

(n94)Footnote 94. See Brumberger v. Sallie Mae Servicing Corp., 2003 U.S. Dist. LEXIS 5235 (E.D. La. Mar. 28, 2003) , aff'd, Brumberger v. Sallie Mae Servicing Corp., 84 Fed. Appx. 458, 2004 U.S. App. LEXIS 151 (2004) .

(n95)Footnote 95. See Skerry v. Massachusetts Higher Educ. Assistance Corp., 73 F. Supp. 2d 47 (D. Mass 1999) (student loan guarantor was not "debt collector" where delinquent loan was never defaulted by the guarantor; finding FTC informal opinions and staff commentaries unpersuasive, court adopted the Federal Family Education Loan Program definition of "default" because the debt was a student loan); Jones v. Intuition, Inc., 12 F. Supp. 2d 775 (W.D. Tenn. 1998) ; Coppola v. Connecticut Student Loan Foundation, 1989 U.S. Dist. LEXIS 3415 (D. Conn. Mar. 22 1989) ; National Consumer Law Center, Student Loan Law (2d ed. 2002 and Supp.). Brumberger v. Sallie Mae Servicing Corp., 84 Fed. Appx. 458 (5th Cir. 2004) , (not for publication), aff'd, 2004 U.S. App. LEXIS 151 (5th Cir. Jan. 7, 2004) (dismissed as did not allege that his debt was in default when Sallie Mae began servicing his loan).

(n96)Footnote 96. See Franceschi v. Mautner-Glick Corp., 22 F. Supp. 2d 250 (S.D.N.Y. 1998) . See also Sheehan, FTC Informal Staff Letter (Aug. 31, 1992) (management company for timeshare condominiums exempt).

(n97)Footnote 97. See Whitaker v. Ameritech Corp., 129 F.3d 952 (7th Cir. 1997) (phone bills); In re Mayer, 199 B.R. 616 (E.D. La. 1996) (phone); Osheyack v. Garcia, 814 So. 2d 440 (Fla. 2001) (phone).

(n98)Footnote 98. See Hamilton v. Trover Solutions, Inc., 2003 U.S. Dist. LEXIS 8296 (E.D. La. May 12, 2003) , aff'd, Hamilton v. Trover Solutions, Inc., 104 Fed. Appx. 942, 2004 U.S. App. LEXIS 13764 (2004) (agency which received subrogation to recover medical expenses prior to default was not subject to the FDCPA). Silver, FTC Informal Staff Letter (July 13, 1987); Barker, FTC Informal Staff Letter (Oct. 22, 1987) (phone company); Gold, FTC Informal Staff Letter (May 7, 1986).

(n99)Footnote 99. See Kvassay v. Hasty, 236 F. Supp. 2d 1240 (D. Kan. 2002) (lawyers "obtained" checks which armored car service had lost; Stark v. Hasty, 236 F. Supp. 2d 1214 (D. Kan. 2002) (companion case to Kvassay; same result); Orent v. Credit Bureau, Inc., 2001 U.S. Dist. LEXIS 17683 (W.D. Mich. Oct. 23, 2001) (debt acquired through merger); Shapiro, FTC Informal Staff Letter (Dec. 20, 1999); Shapiro, FTC Informal Staff Letter (Oct. 1, 1997) (company hired to do marketing, credit extension, and servicing also may be exempt under a de facto employee rationale Cardonick). See Williams v. Edelman, 408 F. Supp. 2d 1261 (S.D. Fla. 2006) (entity that serviced condominium debt before it fell into default was not "debt collector" as defined by FDCPA).

(n100)Footnote 100. Durkin v. Equifax Check Servs., Inc., 2002 U.S. Dist. LEXIS 20742 (N.D. Ill. Oct. 28, 2002) .

(n101)Footnote 101. 15 U.S.C. § 1692a(6)(F)(iv). See Friedman v. Textron Fin. Corp., 1997 U.S. Dist. LEXIS 11968 (N.D. Ill. Aug. 11, 1997) (secured party in a commercial transaction who arranged a consumer account that was used as collateral following default on loan from the commercial lender to the original creditor was excluded from definition of "debt collector" pursuant to 15 U.S.C. § 1692a(6)(F)(iv)).

(n102)Footnote 102. Pub. L. No. 109-351 § 818, 120 Stat. 2004 (Oct. 13, 2006).

(n103)Footnote 103. See www.accs-inc.com.

(n104)Footnote 104. E.g., Gradisher v. Check Enforcement Unit, Inc., 210 F. Supp. 2d 907 (W.D. Mich. 2002) (although debt collector was independent contractor with county, its notices purporting to be from sheriff's department gave false impression that they were from sheriff in violation of 15 U.S.C. §§ 1692e(9) and 1692e(14)).

(n105)Footnote 105. See Schwarm v. Craighead, 233 F.R.D. 655 (E.D. Cal. Mar. 7, 2006) .

(n106)Footnote 106. 15 U.S.C. § 1692a(3).

(n107)Footnote 107. 15 U.S.C. § 1692a(5).

(n108)Footnote 108. See Beaton v. Reynolds, Ridings, Vogt & Morgan, P.L.L.C., 986 F. Supp. 1360 (W.D. Okla. 1998) ; M. Fabrikant & Sons v. Fuller, 1998 U.S. Dist. LEXIS 19843 (N.D. Tex. Dec. 14, 1998) ; Garza v. Bancorp Group, Inc., 955 F. Supp. 68 (S.D. Tex. 1996) ; Allen v. BRT Util. Corp., 1996 U.S. Dist. LEXIS 22441 (D. Conn. Oct. 24, 1996) . See also Slenk v. Transworld Sys., 236 F.3d 1072 (9th Cir. 2001) (Summary judgment was inappropriate and reversed where there was conflicting evidence on whether a backhoe was purchased and used strictly for the building of the buyer's own home or whether it was bought for his construction business. A sole proprietor's purchase would not be for a consumer purpose covered by the FDCPA. If a loan was made for a business purpose, it would not become a consumer loan by virtue of the debt collector's dunning calls to the home of the collector.).

(n109)Footnote 109. See Edwards v. Beatty, 2001 U.S. App. LEXIS 20788 (9th Cir. Sept. 20, 2001) (not for publication) (dismissal was affirmed where pro se plaintiff failed to offer evidence to support claim that commercial debt was converted into a consumer debt by defendant's collection activities, i.e., phoning him at home); Broadnax v. Greene Credit Serv., 106 F.3d 400 (6th Cir. 1997) (unpublished), reported in full, 1997 U.S. App. LEXIS 776 (6th Cir. Jan. 15, 1997) ; Bloom v. I.C. Sys., Inc., 972 F.2d 1067 (9th Cir. 1992) (attention was focused on the actual purpose of the loan; neither the lender's motives--lender was personal friend of borrower--nor the stated purpose of the loan was dispositive); Moore v. Principal Credit Corp., 1998 U.S. Dist. LEXIS 6917 (N.D. Miss. Mar. 30, 1998) . Moss v. Cavalry Inv., L.L.C., 2004 U.S. Dist. LEXIS 24990 (N.D. Tex. Sept. 20, 2004) (underlying use of credit card for personal purposes created an issue of fact where card was used for both business and consumer purchases and application indicated it was for business purposes).

(n110)Footnote 110. Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872 , reh'g en banc denied, 2000 U.S. App. LEXIS 18232 (7th Cir. July 26, 2000) (debt for a house purchased as the buyer's residence and then rented when the buyer moved was a consumer debt originally; the subsequent use of the collateral would not alter the applicability of the FDCPA.).

(n111)Footnote 111. Garner v. Augustine, Kern & Levens, Ltd., 1994 U.S. Dist. LEXIS 1573 (N.D. Ill. Feb. 16, 1994) .

(n112)Footnote 112. Gary v. Goldman & Co., 2002 U.S. Dist. LEXIS 416 (E.D. Pa. Jan. 14, 2002) (a dishonored check was a debt under the FDCPA); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997) ; Gradisher v. Check Enforcement Unit, Inc., 133 F. Supp. 2d 988 , class certification granted, in part, 203 F.R.D. 271 (W.D. Mich. 2001) ; Rosales v. National City Corp., 1997 U.S. Dist. LEXIS 23923 (D. Mass. Aug. 31, 1997) (check on which payment was stopped was a "debt."); Narwick v. Wexler, 901 F. Supp. 1275 (N.D. Ill. 1995) . See Price v. Surety Acceptance Corp., 1999 U.S. Dist. LEXIS 22418 (D. Ariz. Aug. 13, 1999) (checks were debts). Armstrong v. Rose Law Firm, P.A., 2002 U.S. Dist. LEXIS 4039 (D. Minn. Mar. 7, 2002) (FDCPA contains no fraud exception that would exclude the dishonored check); Wiegand v. JNR Adjustment Co., 2002 U.S. Dist. LEXIS 7292 (D. Minn. Apr. 22, 2002) . See also Winterstein v. Crosscheck, Inc., 149 F. Supp. 2d 466 (N.D. Ill. 2001) (court rejected check guarantee service's arguments that it was not debt collector; it was not a creditor because check had been presented to creditor and forwarded to guarantee service after default; agreement assigning check before default exalted form over substance). But see Krevsky v. Equifax Check Servs., Inc., 85 F. Supp. 2d 479 (M.D. Pa. 2000) (dishonored check was not a debt under the FDCPA because payment by check was tantamount to paying with cash and did not involve the extension of credit).

(n113)Footnote 113. E.g., Romea v. Heiberger & Assocs., 163 F.3d 111 (2d Cir. 1998) ; Emanuel v. American Credit Exch., 870 F.2d 805 (2d Cir. 1989) ; Wenrich v. Robert E. Cole, P.C., 2000 U.S. Dist. LEXIS 18687 (E.D. Pa. Dec. 22, 2000) (claim for rent for a residential apartment was a debt covered by the FDCPA). But see Arrey v. Beaux Arts II, LLC, 101 F. Supp. 2d 225, 227 (S.D.N.Y. 2000) (tenant pro se removed an eviction action to federal court because three-day eviction notice allegedly violated the FDCPA; the action was remanded: "[B]oth the removal and the contention that the alleged violation of the Act constitutes a defense to the nonpayment proceeding are utterly frivolous."); Hodges v. Feinstein, Raiss, Kelin & Booker, L.L.C., 383 N.J. Super. 596, 893 A.2d 21 (N.J. Super. Ct. App. Div. Mar. 8, 2006) (eviction for nonpayment of rent). See also Hodges v. Feinstein, Raiss, Kelin & Booker, L.L.C., 383 N.J. Super. 596, 893 A.2d 21 (N.J. Super. Ct. App. Div. Mar. 8, 2006) (law firm that regularly engaged in summary eviction proceedings was subject to FDCPA; law firm sought eviction based on nonpayment of costs and attorney fees that did not constitute rent and could not be basis for eviction).

(n114)Footnote 114. E.g., Adams v. Law Offices of Stuckert & Yates, 926 F. Supp. 521 (E.D. Pa. 1996) .

(n115)Footnote 115. E.g., Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000) (municipal water and sewer bills were debts covered by the FDCPA; the dicta in Zimmerman that a debt must involve credit was not controlling); Clay v. Melchionne, 2000 WL 1838368 (D. Conn. 2000) (water usage fee owed to a municipality was a "debt"); Allen v. BRT Util. Corp., 1996 U.S. Dist. LEXIS 22441 (D. Conn. Oct. 24, 1996) . E.g., Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227 (3d Cir. 2005) (FDCPA applied to collection of municipal water bill by attorneys who also pursued municipal liens. The court noted that water service was voluntary and involved a pro tanto exchange of water for money, and rejected the argument that there was an in rem exemption in the FDCPA.); Albanese v. Portnoff Law Assocs., Ltd., 301 F. Supp. 2d 389 (E.D. Pa. 2004) (FDCPA applies to in rem collection proceedings to impose lien for municipal services on real property); Keauhou Master Homeowners Ass'n, Inc. v. County of Hawaii, 104 Haw. 214, 87 P.3d 883 (2004) (sewer debts covered).

(n116)Footnote 116. Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) .

(n117)Footnote 117. Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260 (9th Cir. 1996) , cert. denied, 516 U.S. 1106, 117 S. Ct. 2484, 138 L. Ed. 2d 992 (1997) ; Juras v. Aman Collection Serv., Inc., 829 F.2d 739 (9th Cir. 1987) .

(n118)Footnote 118. Dorsey v. Morgan, 760 F. Supp. 509 (D. Md. 1991) .

(n119)Footnote 119. Epstein v. Beck & McDonald, Clearinghouse No. 50,284 (N.D. Tex. 1994) (debt may not be presumed not to be debt for personal purposes simply because of its large amount (over $300,000 on over 40 credit card accounts); motion to dismiss FDCPA claim dismissed).

(n120)Footnote 120. Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477 (7th Cir. 1997) , reh'g denied, 1997 U.S. App. LEXIS 24820 (7th Cir. Sept. 12, 1997) . See, e.g., Riter v. Moss & Bloomberg, Ltd., 932 F. Supp. 210 (N.D. Ill. 1996) , rev'd, remanded, 119 F.3d 477 (7th Cir. 1997) . See also Herbert v. Monterey Fin. Servs., Inc., 863 F. Supp. 76 (D. Conn. 1994) (vacation time-share was a debt covered by the FDCPA). See also Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361 (M.D. Fla. 2002) (delinquent maintenance assessments under a property owners' association contract were debts). See Agan v. Katzman & Korr, P.A., 2004 U.S. Dist. LEXIS 4158 (S.D. Fla. Mar. 16, 2004) (condominium assessments covered). See also Berndt v. Fairfield Resorts, Inc. 337 F. Supp. 2d 1120 (W.D. Wis. 2004) (timeshare resort maintenance assessment covered.).

(n121)Footnote 121. See National Consumer Law Center, Fair Debt Collection, § 4.4.2.3 (5th ed. 2004 and Supp.).

(n122)Footnote 122. 15 U.S.C. § 1602(h).

(n123)Footnote 123. Bloom v. I.C. Sys., Inc., 972 F.2d 1067 (9th Cir. 1992) (particular attention was focused on the actual purpose of the loan in determining whether it fit the definition of "debt"; neither the lender's motives--lender was borrower's personal friend--nor the manner of memorialization of the loan was dispositive); See 15 U.S.C. § 1602(h). See also Broadnax v. Greene Credit Serv., 106 F.3d 400 (6th Cir. 1997) (unpublished), reported in full, 1997 U.S. App. LEXIS 776 (6th Cir. Jan. 15, 1997) ; Allen v. BRT Util. Corp., 1996 U.S. Dist. LEXIS 22441 (D. Conn. Oct. 24, 1996) ; National Consumer Law Center, Truth in Lending (5th ed. and Supp.).

(n124)Footnote 124. See Staub v. Harris, 626 F.2d 275 (3d Cir. 1980) . See also Israel v. Everson, 2005 U.S. Dist. LEXIS 28255 (S.D. Iowa Oct. 14, 2005) (IRS claim for back taxes was not "debt").

(n125)Footnote 125. See Mabe v. G.C. Servs. Ltd. P'ship, 32 F.3d 86 (4th Cir. 1994) .

(n126)Footnote 126. Arnold v. Truemper, 833 F. Supp. 678 (N.D. Ill. 1993) . See also FTC Official Staff Commentary § 803(5); Palmer, FTC Informal Staff Letter (Aug. 27, 1992) (law firms pursuit of civil damages arising from shoplifting violation was a tort action and thus not covered by FDCPA); Dunn, FTC Informal Staff Letter (Aug. 17, 1992) (tort claims and tort judgments were not "debts" covered by the FDCPA); Kaplan, FTC Informal Staff Letter (May 18, 1987).

(n127)Footnote 127. See 26 U.S.C. § 6304(e).

(n128)Footnote 128. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) (while the FDCPA may apply to consensual transactions, there is no express FDCPA exception for transactions that are not consensual because the consumer entered into them with the intent to defraud the other party; the court would not create a fraud exception where Congress did not create one). See also Wiegand v. JNR Adjustment Co., 2002 U.S. Dist. LEXIS 7292 (D. Minn. Apr. 22, 2002) (attempting to collect the amounts of stolen, forged checks from the checking account owner who reversed payment on them was attempting to collect a "debt" within the FDCPA, notwithstanding the underlying theft and the purported absence of a consensual transaction between the merchant and the putative debtor).

(n129)Footnote 129. 15 U.S.C. § 1692.

(n130)Footnote 130. 15 U.S.C. § 1692k. See Wright v. Financial Serv. of Norwalk, Inc., 996 F.2d 820 (6th Cir. 1993) , aff'd en banc, 22 F.3d 647 (6th Cir. 1994) (executrix, deceased's daughter, stood in the shoes of the debtor, had authority to open and read letters addressed to the debtor, and had standing to bring actions under the FDCPA); Wenrich v. Robert E. Cole, P.C., 2000 U.S. Dist. LEXIS 18687 (E.D. Pa. Dec. 22, 2000) (some protections of the FDCPA extended to "any person," including parents alleged to be obligated on the claim, if they were contacted by the collector to pay the debt); Sibersky v. Borah, Goldstein, Altschuler & Schwartz, P.C., 2000 U.S. Dist. LEXIS 14043 (S.D.N.Y. Sept. 22, 2000) (husband who was not a consumer could pursue FDCPA claims under sections not restricted to consumers, such as a § 1692e(5) claim, but claim for violation of the notice requirements, which applied only to consumers, was dismissed); Flowers v. Accelerated Bureau of Collections, Inc., 1997 U.S. Dist. LEXIS 3354 (N.D. Ill. Mar. 13, 1997) (consumer's spouse may bring FDCPA claim if debt collection efforts that would violate the Act were targeted at her; husband to which a collection call was targeted had standing to sue where the threats to sue and garnish his wages were received by his wife); Dutton v. Wolhar, 809 F. Supp. 1130 (D. Del. 1992) (protections not limited to "consumers"); Dolan v. Schreiber & Assocs., P.C., 2002 U.S. Dist. LEXIS 6005 (magistrate recommendation), adopted, 2002 U.S. Dist. LEXIS 5998 (D. Mass. Mar. 29, 2002) (alleged unlawful threat to attach the debtor's property stated a claim on behalf of a nondebtor co-owner of the property, since the threat had consequences for the nondebtor whose interest in the property could be harmed). But see Kropelnicki v. Siegel, 290 F.3d 118 (2d Cir. 2002) (consumer had no standing to claim that the contents of the letter violated the FDCPA because the letter was addressed to her daughter and was, therefore, not a communication with her).

(n131)Footnote 131. See, e.g., 15 U.S.C. § 1692d.

(n132)Footnote 132. 15 U.S.C. § 1692(e).

(n133)Footnote 133. See Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208 (10th Cir. 2006) (Art. III constitutional standing satisfied).

(n134)Footnote 134. See McCartney v. First City Bank, 970 F.2d 45, 46 (5th Cir. 1992) ; Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir. 1982) .

(n135)Footnote 135. See Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) .

(n136)Footnote 136. 15 U.S.C. § 1692a(6). See Hayes v. GC Servs., 1995 U.S. Dist. LEXIS 12045 (W.D. Va. June 19, 1995) (collection agency which made brief reminder phone calls to HUD mortgage holders who were one month late in payments was engaged in debt collection); see also Knight v. Schulman, 102 F. Supp. 2d 867 (S.D. Ohio 1996) (letter acknowledging payment was not a communication to collect a debt). But see Santoro v. CTC Foreclosure Serv. Corp., 12 Fed. Appx. 476 (9th Cir. 2001) (unpublished) (ignoring logic and plain meaning rule, court held FDCPA did not apply to letter sent by "foreclosure service" discussing creditor's workout policies and legal notice of foreclosure because they were not duns sent in connection with the collection of a debt); Buckley v. Bass & Assocs., 249 F.3d 678 (7th Cir. 2001) (letter seeking information about consumer's bankruptcy filing was not effort to collect a debt, so defendant need not comply with "initial communication" requirements of § 1692g).

(n137)Footnote 137. See Van Westrienen v. Americontinental Collection Corp., 94 F. Supp. 2d 1087 (D. Or. 2000) . But see Young v. Manley, 2000 U.S. Dist. LEXIS 13035 (N.D. Ill. Sept. 6, 2000) (The defendant law firm sent a letter to plaintiff's bankruptcy attorney threatening a nondischargeability proceeding based on the amount of credit card charges incurred just before bankruptcy. The letter contained neither of the required FDCPA notices. The consumer's attorney was not a "consumer" within the FDCPA and did not need its protections; a collector was, indeed, required to communicate with the attorney who represented the debtor.).



Kropelnicki v. Siegel, 290 F.3d 118 (2d Cir. 2002) (stating in dicta, "[W]e assume the attorney, rather than the FDCPA, will protect the consumer from a debt collector's fraudulent or harassing behavior. However, this is not an issue on which we need to rule today."); Diesi v. Shapiro, 330 F. Supp. 2d 1002 (C.D. Ill. 2004) (followed dicta in Kropelnicki and dismissed consumers' claim that mortgage servicer inflated mortgage balance in statement to her lawyer helping consumer prevent foreclosure); Zaborac v. Phillips & Cohen Assoc., Ltd., 330 F. Supp. 2d 962, 966 (N.D. Ill. 2004) ; Tromba v. M.R.S. Assoc., Inc., 323 F. Supp. 2d 424, 428 (E.D.N.Y. 2004) . See also Phillips v. North Am. Capital Corp., 1999 U.S. Dist. LEXIS 7000 (N.D. Ill. Apr. 30, 1999) ("[f]urthermore, plaintiff has no standing to bring this claim. While the FDCPA prohibits certain communications with a 'consumer,' the statute does not prohibit such communications with a consumer's attorney. The underlying rationale of the statute--protecting unsophisticated consumers--does not support a ban on communications with consumers' attorneys, who presumably have a higher level of sophistication.").

(n138)Footnote 138. See Blanks v. Ford Motor Credit, 2005 U.S. Dist. LEXIS 269 (N.D. Tex. Jan. 7, 2005) ; Sullivan v. Equifax, Inc., 2002 U.S. Dist. LEXIS 7884 (E.D. Pa. Apr. 19, 2002) .

(n139)Footnote 139. See, e.g., Pettway v. Harmon Law Offices, P.C., 2005 U.S. Dist. LEXIS 21341 (D. Mass. Sept. 27, 2005) ("Harmon's payoff and reinstatement letters state an amount owing which includes unearned fees and costs and asks the debtor to '[p]lease make your certified check ... payable to HARMON LAW OFFICES.' These letters clearly fall within FDCPA's definition of a debt collection communication, whether or not they are prompted by the borrower, and regardless of the fact that a misleading letter was preceded by one that was not."); Spencer v. Hendersen-Webb, 81 F. Supp. 2d 582 (D. Md. 1999) (debt collector's fax of bill to father of consumer's boyfriend in response to his request for information on debt was deemed to be an attempt to collect debt since debt collector believed father was consumer's attorney and that information would reach consumer indirectly; court determined that fax was debt collector's initial communication and thus failure to provide validation notice in connection with fax violated FDCPA; therefore, debt collector violated § 1692g(b) making offer and by failing to cease collection until debt was verified); Weinberg v. Arcventures, Inc., 1996 U.S. Dist. LEXIS 9415 (N.D. Ill. July 3, 1996) (genuine issue of material fact existed as to whether collection agency's letter to debtor's daughter was an attempt to get daughter to pay debt she did not owe or was sent to daughter, an attorney, as legal representative of her mother; letter was sent in response to request by daughter, an attorney, for verification of her mother's debt). But see Geiger v. Creditors Interchange, Inc., 59 Fed. Appx. 803 (6th Cir. 2003) (not for publication) (second letter that was sent in response to consumer's accusation that collector had violated FDCPA did not convey information regarding debt itself, was not "communication" as defined by § 1692a(2), and therefore did not require § 1692e(11) disclosure); Wexler v. Bank of Am. Auto Fin. Corp., 2000 U.S. Dist. LEXIS 12491 (N.D. Ill. Aug. 23, 2000) (letter, in response to Wexler's communication, that did not seek payment but was merely warning seeking to avert any collection consequences of nonpayment was not collection activity covered by FDCPA; plaintiff Wexler was defendant in prior FDCPA suits).

(n140)Footnote 140. 15 U.S.C. § 1692a(2).

(n141)Footnote 141. Mezines, FTC Formal Advisory Opinion (Mar. 31, 2000). But see McKnight v. Benitez, 176 F. Supp. 2d 1301 (M.D. Fla. 2001) (neither summons, complaint, or other papers served on consumer in conjunction with initiation of lawsuit is a "communication" under FDCPA; plaintiff's claim that papers failed to comply with § 1692g dismissed); Frye v. Bowman, Heintz, Boscia & Vician, P.C., 193 F. Supp. 2d 1070 (S.D. Ind. 2002) (court surveyed dispute of authority about whether a summons was a communication to collect a debt, but did not decide because a "communication" was not essential to the alleged violations).

(n142)Footnote 142. Compare Vega v. McKay, 351 F.3d 1334 (11th Cir. 2003) (summons not a communication) with Thomas v. Law Firm of Simpson & Cybak, 354 F.3d 696 (7th Cir. 2004) (not for publication), vacated, 358 F.3d 446 (7th Cir. 2004) (summons was a communication). See also Gibson v. Grupo de Ariel, L.L.C., 2006 U.S. Dist. LEXIS 539 (N.D. Tex. Jan. 9, 2006) (FDCPA claim can be premised on flawed legal proceedings because FDCPA prohibits fraudulent, deceptive or misleading representations, including those made in judicial or governmental proceedings); Anderson v. Frederick J. Hanna & Assocs., 361 F. Supp. 2d 1379 (N.D. Ga. 2005) (debt collector's argument that lawsuit to collect debt was not "collection activity" was patently frivolous).

(n143)Footnote 143. Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) ("The Act does apply to lawyers engaged in litigation."); see also Romea v. Heiberger & Assocs., 163 F.3d 111 (2d Cir. 1998) (state mandated 3-day demand for payment of past-due rent and eviction notice sent by an attorney is covered); Tomas v. Bass & Moglowski, 1999 U.S. Dist. LEXIS 21533 (W.D. Wis. June 29, 1999) (filing a complaint and other aspects of litigation were actions in connection with the collection of a debt); Mezines, FTC Formal Advisory Opinion (Mar. 21, 2000) ("In light of Heintz, the Commission concludes that, if an attorney debt collector serves on a consumer a court document 'conveying information regarding a debt,' that court document is a 'communication' for purposes of the FDCPA."). But cf. Dempsey, FTC Informal Staff Letter (Sept. 13, 1996) (while summary eviction proceedings may not be covered, under Heintz, dunning letters in connection with the litigation are covered).

(n144)Footnote 144. 392 F.3d 914 (7th Cir. 2004) . See also In re Gunter, 334 B.R. 900 (Bankr. S.D. Ohio 2005) (summons and complaint are "communications" within FDCPA).

(n145)Footnote 145. Vega v. McKay, 351 F.3d 1334 (11th Cir. 2003) .

(n146)Footnote 146. Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) ; Paulemon v. Tobin, 30 F.3d 307 (2d Cir. 1994) ; Clark's Jewelers v. Humble, 823 P.2d 818 (Kan. Ct. App. 1991) (debt collector violated § 1692g(b) where it failed to provide verification of the debt but continued to send dunning letters in care of consumers' attorney). See also Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992) (dissenting opinion) (conveying information to an attorney is equivalent to conveying it to the attorney's client). But cf. Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002) (dicta: "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."); Dikeman v. National Educators, Inc., 81 F.3d 949 (10th Cir. 1996) (the § 1692e(11) disclosures were not required to avoid deception in a communication to the consumer's attorney verifying the amount of debt in response to the consumer attorney's request for verification because the debt collection purpose of the letter would be apparent to the attorney. The jury had found the debt had not been verified when the verification given was inadequate because it overstated the collector's claim, but the jury excused the violation as a bona fide error because it was not an attempt to collect a debt but was designed to comply with the U.C.C.).


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