(n9)Footnote 9. 15 U.S.C. § 1692a(6). But see Vincent v. Money Store, 402 F. Supp. 2d 501 (S.D.N.Y. Dec. 7, 2005) (court granted defendant summary judgment where consumer's evidence failed to establish that creditor/defendant used alias through its sham employment of outside counsel to collect debts); Mazzei v. Money Store, 349 F. Supp. 2d 651 (S.D.N.Y. 2004) (same).
(n10)Footnote 10. 15 U.S.C. § 1692a(6)(A) and (G).
(n11)Footnote 11. See Laws v. Cheslock, 1999 U.S. Dist. LEXIS 3416 (N.D. Ill. Mar. 8, 1999) ; Young v. Citicorp Retail Servs., 1997 U.S. Dist. LEXIS 22669 (D. Conn. May 20, 1997) , aff'd, Young v. Citicorp Retail Servs., 1998 U.S. App. LEXIS 20268 (2d Cir. Conn. June 29, 1998) ; Zhang v. Haven-Scott Assocs., 1996 U.S. Dist. LEXIS 8738 (E.D. Pa. June 21, 1996) .
(n12)Footnote 12. See Gorham-Dimaggio v. Countrywide Home Loans, Inc., 2005 U.S. Dist. LEXIS 34237 (N.D.N.Y. Aug. 30, 2005) .
(n13)Footnote 13. 15 U.S.C. § 1692a(6).
(n14)Footnote 14. 15 U.S.C. § 1692a(6)
(n15)Footnote 15. 15 U.S.C. § 1692f(6).
(n16)Footnote 16. See Rosado v. Taylor, 324 F. Supp. 2d 917 (N.D. Ind. 2004) (FDCPA does not apply to a foreclosure action even if the foreclosure attorney seeks attorney fees, but it does apply to a §§ 1692e(11) and 1692g notice sent by the foreclosing attorney). See also Thomson v. Professional Foreclosure Corp., 86 Fed. Appx. 352 (9th Cir. 2004) (not for publication) (affirmed the district court's dismissal on the basis that the defendants were subject only to § 1692f(6) as enforcers of security interests). See also McDaniel v. South & Assocs., P.C., 325 F. Supp. 2d 1210 (D. Kan. 2004) (collection lawyer violated FDCPA by initiating judicial foreclosure action seeking a money judgment as well as foreclosure after receiving a timely validation request but before responding to it).
(n17)Footnote 17. Compare Pettway v. Harmon Law Offices, P.C., 2005 U.S. Dist. LEXIS 21341 (D. Mass. Sept. 27, 2005) ("Harmon acted as a debt collector when it solicited borrowers to pay off the underlying mortgages;" fact that it was also pursuing foreclosure did not insulate it from FDCPA liability) with Barbanti v. Quality Loan Serv. Corp., 2007 U.S. Dist. LEXIS 676 (E.D. Wash. Jan. 3, 2007) (enforcement of security interest through non-judicial forfeiture does not constitute collection of debt for purposes of FDCPA). See also Kondratick v. Beneficial Consumer Discount Co., 2006 U.S. Dist. LEXIS 4754 (E.D. Pa. Feb. 8, 2006) (denying summary judgment including FDCPA claims where determination of whether Beneficial's failure to stop its foreclosure when it entered into ambiguous mortgage reinstatement agreement with state homeowner assistance program was breach of reinstatement agreement raised questions for trier of fact); Fong v. Prof'l Foreclosure Corp., 2005 U.S. Dist. LEXIS 31643 (W.D. Wash. Nov. 22, 2005) (summary judgment granted to trustee who commenced foreclosure on property pursuant to deed of trust as trustee was not debt collector as defined by FDCPA as it was enforcing security interest and not collecting money); Gonzalez v. Northwest Tr. Servs., Inc., 2005 WL 2297097 (D. Or. Sept. 20, 2005) (on unopposed motion for summary judgment against pro se plaintiff, court followed Hulse line of cases and held that defendant who pursued foreclosure alone, without seeking payment of money, was not "debt collector"); Miller v. Northwest Trs. Servs., Inc., 2005 U.S. Dist. LEXIS 43770 (E.D. Wash. July 20, 2005) (mortgage companies and their trustees that engaged in foreclosure are not "debt collectors" under 15 U.S.C. § 1692a(6) because they are not seeking payment of money).
(n18)Footnote 18. See Ray v. Int'l Bank, Inc., 2005 WL 2305017 (D. Colo. Sept. 21, 2005) (court denied attorney defendant's motion to dismiss, holding that his initiation of foreclosure proceedings and service of foreclosure documents constituted collection of debt, rejecting contrary Hulse line of cases, and explaining as follows: "Although foreclosure proceedings do not seek or result in a money judgment, they are an attempt to collect on a debt through realization of the value of property which the debtor has pledged to secure the loan. Through foreclosure, the debt can be partially or fully satisfied.").
(n19)Footnote 19. 443 F.3d 373 (4th Cir. 2006) .
(n20)Footnote 20. Hulse v. Ocwen Fed. Bank, F.S.B., 195 F. Supp. 2d 1188 (2002) ; Heinemann v. Jim Walter Homes, Inc., 47 F. Supp. 2d 716, 722 (N.D. W. Va. 1998) , affd, 173 F.3d 850 (4th Cir. 1999) (unpublished) (noting that a foreclosure's purpose is a collateral sale to obtain money, following the Colorado Supreme Court's decision in Shapiro & Meinhold v. Zartman, 823 P.2d 120, 124 (Colo. 1992)) .
(n21)Footnote 21. 464 F.3d 524 (5th Cir. 2006) .
(n22)Footnote 22. FTC Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097 (Dec. 13, 1988) .
(n23)Footnote 23. See, e.g., Pettway v. Harmon Law Offices, P.C., 2005 U.S. Dist. LEXIS 21341 (D. Mass. Sept. 27, 2005) .
(n24)Footnote 24. 15 U.S.C. § 1692j. See Rumpler v. Phillips & Cohen Assocs., Ltd., 219 F. Supp. 2d 251 (E.D.N.Y. 2002) (complaint that alleged the debt was referred to a third party debt collector for collection and did not allege any other facts to support a § 1692j claim was insufficient to establish that the collector was a flat-rater under § 1692j. The use of the title "Esq." did not create the impression that the collector was an attorney where he was collecting under the title "Executive Vice President." The court described flat-rating as a letter sent by a creditor which appears to come from a third party collector.).
(n25)Footnote 25. Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir. 1997) (creditor was a "debt collector" even though it was collecting its own debt because it used a lawyer's letterhead and facsimile signature on its dunning letters, falsely indicating that a third person was collecting the debt). See also Newman v. CheckRite Cal., Inc., 912 F. Supp. 1354 (E.D. Cal. 1995) (lawyers collecting debts for a check collection agency were covered by the Act and that coverage was not an unconstitutional interference with the state judiciary's supervision of lawyers); Littles v. Lieberman, 90 B.R. 700 (Bankr. E.D. Pa. 1988) (lawyer who gave his form letter to a creditor for mailing to specific debtors was liable under 15 U.S.C. § 1692j when the creditor sent it to another debtor). See, e.g., Nielsen v. Dickerson, 307 F.3d 623 (7th Cir. 2002) (in case where the court found that the collection attorney did not make a "considered, professional judgment" that individual consumers were delinquent and were candidates for legal action or that the dunning letter should be sent to them, the collection letter was not genuinely from the attorney in the professional sense, and he violated § 1692j).
(n26)Footnote 26. Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) ("In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly attempts 'to collect' those consumer debts."); Addison v. Braud, 105 F.3d 223 (5th Cir. 1997) . A limited attorney exemption in the FDCPA was eliminated by Congress in 1986.
(n27)Footnote 27. Dorsey v. Morgan, 760 F. Supp. 509 (D. Md. 1991) ; Britton v. Weiss, 1989 U.S. Dist. LEXIS 14610 (N.D.N.Y. Dec. 7, 1989) (N.Y. Telephone's in-house attorney included employer's name in address, but failed to indicate that N.Y.T. was his employer and did not use familiar blue bell logo).
(n28)Footnote 28. 15 U.S.C. § 1692a(6). Romea v. Heiberger & Assocs., 988 F. Supp. 712, 714-15 (S.D.N.Y. 1997) , motion granted, 988 F. Supp. 715 (S.D.N.Y.) , aff'd, 163 F.3d 111 (2d Cir. 1998) (law firm regularly sending notices demanding payment of residential rent arrears was engaged in "communication" for the purpose of collecting a "debt" within the meaning of the FDCPA).
(n29)Footnote 29. See Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 155 F. Supp. 2d 60 (S.D.N.Y. 2001) (where law firm's income from collections was 0.5% of its total annual income, it was not a debt collector within the FDCPA); Patrissi Landscaping, Inc. v. Jacunski, 2005 Conn. Super. 308 (Conn. Super. Ct. 2005) (court overruled fact-finder's conclusion that collection attorney regularly collected debts since only evidence was single collection case). See also Corbett v. Wolfgang, 2006 U.S. Dist. LEXIS 80917 (S.D. Ohio Nov. 6, 2006) (attorney did not regularly collect where evidence showed that he had filed 29 foreclosure cases during course of the year, that debt collection was less than 1% of his cases and his revenues, and that he performed that collection work for only four of his 200 clients).
(n32)Footnote 32. See Garrett v. Derbes, 110 F.3d 317 (5th Cir. 1997) (attorney who collected against 639 different individuals in a nine-month period satisfied the requirement that he "regularly" collected debts for another although those 639 cases only represented.5% of his practice).
(n33)Footnote 33. See Camara v. Fleury, 285 F. Supp. 2d 90 (D. Mass. 2003) (where consumer failed to submit any evidence to the contrary, law firm's affidavit that only 4.57% of its practice consisted of consumer debt collection sufficiently supported holding that the attorney and his firm were not "debt collectors"); Argentieri v. Fisher Landscapes, Inc., 15 F. Supp. 2d 55 (D. Mass. 1998) , later op., 27 F. Supp. 2d 84 (D. Mass. 1998) (attorney who spent only 0.4% of his time in debt collection matters was not acting regularly and therefore is not a "debt collector" as defined).
(n34)Footnote 34. See Cashman v. Ricigliano, 2004 U.S. Dist. LEXIS 17027 (D. Conn. Aug. 25, 2004) (defendants were debt collectors because they send 90 letters in five months pursuant to a written agreement with a collection agency, set up a special address and telephone line for the collection efforts; and sued some 53 consumers); Cacace v. Lucas, 775 F. Supp. 502 (D. Conn. 1990) (attorney who represented four collection agencies, filed over 150 collection suits in a two-year period, and sent one particular collection letter over 125 times in a 14-month period was a debt collector even though debt collection was merely incidental to his primary law practice).
(n35)Footnote 35. Stojanovski v. Strobl & Manoogian, 783 F. Supp. 319 (E.D. Mich. 1992) (law firm which collected debts only 4% of the time was a "debt collector" because such activity was regular and brought law firm within § 1692a(6)).
(n36)Footnote 36. Mladenovich v. Cannonito, 1998 U.S. Dist. LEXIS 985 (N.D. Ill. Jan. 30, 1998) (attorney sent twenty-three collection letters on behalf of two clients, and that number was insufficient to establish that he "regularly" collected debts).
(n37)Footnote 37. See Senate Committee on Banking, Housing, and Urban Affairs, S. Rep. No. 95-382, on the Fair Debt Collection Practices Act, at 3 (1977).
(n38)Footnote 38. See Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir. 1974) . Later, the FRB enacted numerical thresholds for coverage of creditors. National Consumer Law Center, Truth in Lending § 2.3.3 (5th ed. 2003 and Supp.).
(n39)Footnote 39. 15 U.S.C. § 1692i.
(n40)Footnote 40. Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992) (attorney collector, who brought foreclosure action in a county other than that where the real estate was situated, violated 15 U.S.C. § 1692i(a)(1) even though state statute allowed such venue).
(n41)Footnote 41. 15 U.S.C. § 1692n.
(n42)Footnote 42. See§ 8.03infra.
(n43)Footnote 43. See National Consumer Law Center, Fair Debt Collection, § 18.104.22.168.4(6th ed. 2008).
(n44)Footnote 44. See In re Scheck, 171 A.D.2d 33, 574 N.Y.S.2d 372 (1991) (allowing collection employees to act in a lawyer's name and violate the FDCPA were considered in a one year suspension of lawyer for violating N.Y. Code of Professional Responsibility).
(n45)Footnote 45. Russey v. Rankin, 911 F. Supp. 1449 (D.N.M. 1995) . Accord Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (court suggested that merely being told by the creditor that a debt was overdue, without the entire payment history and with only the last few creditor notes to the file, was insufficient for a lawyer to make a meaningful determination of whether it was due and its amount).
(n49)Footnote 49. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) .
(n50)Footnote 50. Id. at 300 .
(n51)Footnote 51. ABA Formal Opinion 178 (Feb. 19, 1938), Opinions on Professional Ethics [Am. Bar Found.] 448 (1967).
(n52)Footnote 52. 15 U.S.C. § 1692e.
(n53)Footnote 53. 15 U.S.C. § 1692e(5). See Newman v. CheckRite Cal., Inc., 912 F. Supp. 1354 (E.D. Cal. 1995) (threats of suit were deceptive to least sophisticated consumers where they were made by counsel not yet licensed to practice law, by other counsel not licensed in the state where the threats were made, and there was no arrangement for in-state counsel when the threats were made). But see Sturdevant v. Jolas, 942 F. Supp. 426 (D. Wis. 1996) (opposite view based on possibility of obtaining local counsel).
(n54)Footnote 54. Bice v. Merchants Adjustment Serv., Clearinghouse No. 41,265 (S.D. Ala. 1985).
(n55)Footnote 55. 15 U.S.C. § 1692e(9). See also In re Zenner, 348 S.C. 499, 560 S.E.2d 406 (S.C. 2002) (attorney sanctioned for loaning his name to lay collection agency that engaged in unauthorized practice of law and abusive debt collection).
(n56)Footnote 56. 15 U.S.C. § 1692e(3).
(n57)Footnote 57. See Newman v. Checkrite Cal., Inc., 912 F. Supp. 1354 (E.D. Cal. 1995) .
(n58)Footnote 58. See Federal Trade Comm'n v. Check Investors, Inc., 502 F.3d 159 (3d Cir. 2007) ; Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir. 2003) ; Larsen v. JBC Legal Group, P.C., 533 F. Supp. 2d 290, 2008 U.S. Dist. LEXIS 10488 (E.D.N.Y. Feb. 12, 2008) ; Kimber v. Federal Fin. Corp., 668 F. Supp. 1480, 1484 (M.D. Ala. 1987) .
(n59)Footnote 59. 502 F.3d 159 (3d Cir. 2007) .
(n60)Footnote 60. Id. at 168-169 .
(n61)Footnote 61. Hernandez v. Midland Credit Mgmt., Inc., 2007 U.S. Dist. LEXIS 16054 (N.D. Ill. Mar 6, 2007) .
(n62)Footnote 62. 668 F. Supp. 1480, 1484 (M.D. Ala. 1987) .
(n74)Footnote 74. See Thomasson v. Bank One, La., N.A., 137 F. Supp. 2d 721 (E.D. La. 2001) ; Shevach v. American Fitness Franchise Corp., 2001 U.S. Dist. LEXIS 2899 (S.D.N.Y Mar. 14, 2001) .
(n75)Footnote 75. Nielsen v. Dickerson, 307 F.3d 623 (7th Cir. 2002) (creditor lost its FDCPA creditor exemption because it directed the mailing of the letters that created the false impression that the collection attorney was involved as an attorney, when he was not); Smith v. Continental Cmty. Bank & Trust Co., 2002 U.S. Dist. LEXIS 11193 (N.D. Ill. June 24, 2002) (police and security officers' motion to dismiss was granted because consumer failed to allege that the officers were debt collectors but alleged them to be employees of the bank and therefore exempt).
(n76)Footnote 76. Dorsey v. Morgan, 760 F. Supp. 509 (D. Md. 1991) (asserting his status as an employee of the creditor will not shield an attorney from coverage by FDCPA where he sent dunning letters to consumers which appear to be from outside counsel). See also Cordova v. Larson, 1997 U.S. Dist. LEXIS 23982 (D. Conn. 1997) (where there were genuine issues of material fact as to whether an attorney, who was an employee of the creditor and sent a dunning letter, was principally engaged in the collection of debts or whether the attorney was exempt from the FDCPA because he was using stationery that would create the false impression he was from an independent law office).
(n77)Footnote 77. See Doherty v. Citibank N.A., 375 F. Supp. 2d 158 (E.D.N.Y. 2005) ; Kolari v. New York-Presbyterian Hosp. 382 F. Supp. 2d 562 (S.D.N.Y. 2005) . See also Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir. 1996) (assignee before default creditor not vicariously liable for its collection attorney's alleged FDCPA violation).
(n78)Footnote 78. 15 U.S.C. § 1692a(6)(B) (Supp. II 1979).
(n79)Footnote 79. See Daros v. Chase Manhattan Bank, 2001 U.S. App. LEXIS 21471 (2d Cir. Oct. 1, 2001) (not for publication) (neither bank nor affiliated credit card company was a debt collector for the purposes of the FDCPA); Aubert v. American Gen. Fin., Inc., 137 F.3d 976 (7th Cir. 1998) (a corporate affiliate is excluded from FDCPA coverage if (1) the affiliate collects only for entities to which it is related, and (2) the principal business of the affiliate is not debt collection); Backuswalcott v. Common Ground Cmty. HDFC, Inc., 104 F. Supp. 2d 363 (S.D.N.Y. 2000) (defendant was the managing agent and nonprofit sole shareholder of a general partnership owning 1% of a homeless hotel; defendant was exempt under the affiliate exemption; factors included that debt collection was not defendant's most significant activity, nor its single largest or most important activity; the good will of the tenants was important to defendant, which provided many social services); Friedman v. May Dep't Stores Co., 990 F. Supp. 571 (N.D. Ill. 1998) ("common ownership" exemption applies only if subsidiary or affiliate acting as debt collector does so solely for the entity to which it is related or affiliated and its principal business is not debt collection); Kegley v. Miles Mgmt. Corp., Case No. 92 C 3438, 1992 U.S. Dist. LEXIS 18401 (N.D. Ill. Dec. 2, 1992) (entity, which primarily managed the operation and lease of real estate, but also collected debts arising from the leases, and which was owned by the owner of the real estate, was exempt from the definition of "debt collector" pursuant to 15 U.S.C. § 1692a(6)(B)).
(n80)Footnote 80. See, e.g., Challen v. Town & Country Charge, 545 F. Supp. 1014 (N.D. Ill. 1982) (allegation that bank collects debts owed to VISA, U.S.A. was sufficient to withstand motion to dismiss the bank as not being a debt collector under FDCPA).
(n81)Footnote 81. 15 U.S.C. § 1692a(6)(C). See Hillman v. Secretary of the Treasury, 2000 U.S. Dist. LEXIS 4544 (W.D. Mich. Mar. 29, 2000) (pro se complaint was dismissed because the Internal Revenue Service [hereinafter IRS] was not subject to the FDCPA.); Fleeger v. Bell, 95 F. Supp. 2d 1126 (D. Nev. 2000) (district attorneys attempting to collect the markers pursuant to state bad check statutes were exempt from the FDCPA as officers of a state performing official duties), aff'd, 2001 U.S. App. LEXIS 25491 (9th Cir. 2001) .
(n82)Footnote 82. The term "state" is broadly defined to also include territories, possessions, etc. and political subdivisions of states. 15 U.S.C. § 1692a(8).
(n83)Footnote 83. See Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000) (§ 1692a(6)(c) exemption for government employees did not extend to a collection agency hired by the government to collect water bills); Gradisher v. Check Enforcement Unit, Inc., 133 F. Supp. 2d 988 (independent contractor was not entitled to an exemption as a government employee), class certification granted, in part, 203 F.R.D. 271 (W.D. Mich. 2001) . See Albanese v. Portnoff Law Assocs., Ltd., 301 F. Supp. 2d 389 (E.D. Pa. 2004) (law firm that contracted with municipalities to collect government debt was not within the government officer and employee exemption); Israel v. Everson, 2005 U.S. Dist. LEXIS 28255 (S.D. Iowa Oct. 14, 2005) (IRS exempt); Weiss v. Weinberger, 2005 U.S. Dist. LEXIS 11876 (N.D. Ind. June 9, 2005) (receiver appointed by federal court is officer of court and exempt). See also§§ 8.02[1.1] supra, regarding federal law passed in 2004 that applies FDCPA protections to collection agencies collecting federal tax debts for the IRS. See26 U.S.C. § 6304(e).
(n84)Footnote 84. See Liles v. American Corrective Counseling Servs., 131 F. Supp. 2d 1114 (S.D. Iowa 2001) (factual issues prevented a determination of whether a check collection agency was a debt collector. The collector was not a creditor's employee, an officer of the state, and admitted it was collecting debts, not just administering a bad check criminal diversion program.).
(n85)Footnote 85. 15 U.S.C. § 1692a(6)(D); Flamm v. Sarner & Assocs., P.C., 2002 U.S. Dist. LEXIS 22255 (E.D. Pa. Nov. 6, 2002) (person who went beyond being merely a messenger in serving legal process and engaged in prohibited abusive or harassing activities to force an individual to repay a debt was no longer exempt under the legal process server exception and was a covered "debt collector" as defined by the FDCPA). See also Flamm v. Sarner & Assocs., P.C., 2006 U.S. Dist. LEXIS 308 (E.D. Pa. Jan. 3, 2006) (where court had found process server was debt collector because he went beyond merely serving process, whether lawyers were vicariously liable for independent contractor's actions was jury question).
(n86)Footnote 86. 15 U.S.C. § 1692a(6)(E).
(n87)Footnote 87. 15 U.S.C. § 1692a(6)(F)(i).
(n88)Footnote 88. Pelfrey v. Educational Credit Mgmt. Corp., 71 F. Supp. 2d 1161 (Bankr. N.D. Ala. 1999) , aff'd, 208 F.3d 945 (11th Cir. 2000) ; Montgomery Educ. Credit Mgmt. Corp., 238 B.R. 806 (Bankr. D. Minn. 1999) . See Seals v. National Student Loan Program, 2004 WL 3314948 (N.D. W. Va. Aug. 16, 2004) (student loan guaranty agency was exempt under fiduciary obligation exception to FDCPA).