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    Fair Debt Collection: The Search for the Least Sophisticated Consumer

    Lawyers should understand the Fair Debt Collection Practices Act, so they can determine whether communications with debtors complied with the law and help business clients have policies in place for legal debt-collection practices.

    Brandon E. Bowlin

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    Congress enacted the Fair Debt Collection Practices Act (the FDCPA or Act) in 1977 to address the perceived abusive and unfair practices of debt collectors. Any debt collector who violates the Act faces a potential award of actual and statutory damages as well as the payment of the consumer’s attorney fees.

    This article identifies common violations of the Act, addresses the standard of review courts use to decide whether a violation of the FDCPA has occurred, and offers practice pointers for both debtors’ and collectors’ attorneys engaged in FDCPA and collection litigation. Finally, the article considers the “least sophisticated consumer” standard that the courts have used when evaluating alleged violations of the FDCPA.

    Purpose of the FDCPA

    The FDCPA is a strict liability and remedial statute. Its primary purpose is to protect consumers from abusive or unfair practices by debt collectors. Congress provides a clear picture of what the consumer environment was like in the late 1970s. The statute specifically states: “[T]here is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”1 Also, the statute recognizes that existing laws and procedures for redressing these injuries were inadequate to protect consumers.2

    Brandon E. Bowlincom bbowlin rsieh Brandon E. Bowlin, Dayton 2004, is a senior associate with Rausch, Sturm, Israel, Enerson & Hornik LLC, Brookfield, practicing in consumer debt collection.

    All debt collectors and any person collecting or attempting to collect a debt, which includes collection law firms, must comply with the FDCPA. The Act provides a remedy for a consumer, defined by the statute as any natural person obligated or allegedly obligated to pay any debt, to pursue a claim for a violation under the statute.3 The Ninth Circuit has observed that the overarching purpose of the FDCPA is to prevent debt collection actions that frustrate a consumer’s ability to chart a course of action in response to a collection effort.4 Considering the numerous FDCPA lawsuits filed across the country every year, it is accurate to state that the FDCPA is serving its purpose.

    Common Violations under the FDCPA

    The FDCPA lays out an exhaustive list of categories in which a debt collector can commit a violation. The following are a few examples of the more common violations that can and do occur. First, according to the FDCPA, a debt collector must not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.5 More specifically, a debt collector must not make a false representation of the character, amount, or legal status of any debt.6

    Second, a debt collector must not use any false representation or deceptive means to collect or attempt to collect any debt.7 Third, a debt collector must not collect any amount unless such amount is expressly authorized by the agreement creating the debt or permitted by law.8 Finally, within five days after the initial communication with a consumer in connection with the collection of any debt, unless the following information is contained in the initial communication or the consumer has paid the debt, a debt collector must send the consumer a written notice containing a statement that unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.9

    In considering whether a debt collector has violated the FDCPA, courts generally will evaluate the facts from the perspective of the debtor. Unfortunately, the FDCPA does not provide the standard of review for courts to use in determining if a violation has occurred. As a result, court decisions have determined the scope and breadth of the standard of review to be used. The courts generally have used a “least sophisticated consumer” standard to decide whether communications by the debt collector violate the FDCPA, but the application of the standard is not uniform.10

    Least Sophisticated Consumer Standard

    The least sophisticated consumer standard is an objective standard, meaning that the specific plaintiff need not prove that he or she was actually confused or misled, only that the communication would confuse or mislead the least sophisticated debtor.11 The basic purpose of the standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.12 Courts have held that even the least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.13

    The standard effectively serves its dual purpose: it ensures the protection of all consumers, even the naïve and the trusting, against deceptive debt collection practices, and it protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices.14 Recently, courts have begun to impose a higher level of knowledge for the least sophisticated consumer.

    Evolution of the Least Sophisticated Consumer Standard

    In the past few years, the knowledge level of the “least sophisticated consumer” has slightly increased. In Davis v. Hollins Law Firm, the Ninth Circuit stated that courts presume that debtors have a basic level of understanding and willingness to read the relevant documents with care and that courts do so to safeguard bill collectors from liability for consumers’ bizarre or idiosyncratic interpretations of collection notices.15

    Furthermore, a collector’s statement must be “material” to be actionable under the FDCPA, meaning that a false or misleading statement does not violate the FDCPA unless it also frustrates the ability of the consumer to intelligently choose an appropriate response.16 The court concluded that a debt collection firm’s failure to expressly state that a voicemail was from a debt collector did not violate the FDCPA because of the extent of the prior communications between the law firm and the consumer.17

    The least sophisticated consumer standard is an objective standard, meaning that the specific plaintiff need not prove that he or she was actually confused or misled, only that the communication would confuse or mislead the least sophisticated debtor.

    In another recent decision, the Eleventh Circuit held that periodic mortgage statements sent to the debtor after the consumer’s mortgage loan was discharged in bankruptcy did not violate the FDCPA.18 The consumer alleged that the statements constituted an unlawful attempt to collect a debt because the debt was discharged and that such communication would be misleading to the least sophisticated consumer because it suggested that she remained liable for the debt.19

    The court concluded, however, based on a notice provided on the statements, that “[a] least sophisticated consumer – reading that notice with some care – would be informed that she (1) has no personal obligation to repay the debt; (2) is not personally liable for the debt; and (3) cannot be pressured to repay the debt. We are simply unable to conclude that a debtor, having been so informed, could have been misled into believing that the Bank was implying a right to proceed against her personally.”20

    These decisions recognize that debt collectors should be able to rely on clear and honest communications with debtors without facing liability under the FDCPA. Encouraging clear and honest communications furthers the Act’s goals and might even lead to more expeditious and complete resolutions of any disputes that may exist between the parties.

    Practice Tips

    Obviously, first and foremost, a lawyer must be familiar with the FDCPA and the types of violations that can occur. This really serves as a foundation for how offices’ internal policies and procedures should be established to comply with the FDCPA. If there are no policies and procedures in place, it is a good idea to set them up.

    Lawyers must be meaningfully involved in the file from start to finish. A lawyer should approve any letter that is being mailed to a consumer or the underlying template to ensure compliance with the FDCPA. When reviewing the language of a letter a lawyer should always consider if the least sophisticated consumer would be misled, confused, or deceived by the letter’s language. As is the case with any policy and procedure, quality assurance measures should be in place to ensure that the policies and procedures are being followed. The same should be true for emails. A lawyer-approved template of emails is one approach. Another, slightly more extreme, measure is to restrict access so as to allow only lawyers to send outgoing emails.

    Also, there should be policies and procedures in place when it comes to filing lawsuits. Lawyer review of the lawsuits is crucial to ensure compliance with the FDCPA. The lawsuit itself, in addition to the entire account, should be scrutinized. All correspondence with the consumer should be reviewed as well as account-level documents to ensure that the account of the individual being sued is ready for litigation. If the other party is represented by a lawyer, placing a phone call before filing a lawsuit may save the client, the consumer, and the court time and resources. Providing faster solutions at lower costs is a sure way to keep clients happy.

    FDCPA compliance will be likely if the firm has policies and procedures, including call-monitoring processes, for all telephone communications. Anyone placing a phone call to a consumer should have a script with an approved call flow that contains all the necessary disclosures. A lawyer or other properly trained call monitor should be listening to calls to ensure the policies and procedures are followed and violations of the FDCPA do not occur. If you do not have a call-monitoring process in place, one should be implemented. If you are being sued for an alleged violation that took place over the phone, the only way to refute the claim is to have evidence that the violation never occurred.

    Practical Points For and Regarding Consumers

    Again, know your rights under the FDCPA. After all, the statute was created to protect consumers. Lawyers representing consumers should be aware of the least sophisticated consumer standard and take it into consideration when counseling their clients. Make sure there is a violation before bringing an action. Read the correspondence that is being sent to the consumer. As illustrated by the Helman v. Bank of America case, sometimes disclosures and language used by a creditor or debt collector are so unambiguous that even the least sophisticated consumer would know the plain meaning.

    Even more basic, open your mail. There cannot be a claim that a notice or disclosure was not sent if mail is ignored. To that point, if a consumer you are representing claims that the lawsuit is the first communication of the debt, making a courtesy call to the lawyer representing the creditor or debt collector will almost certainly save everyone time. Copies of all correspondence should be readily available to show compliance or noncompliance.

    Remember that in bankruptcy matters, debts incurred post-petition are not included in the bankruptcy unless so ordered by the bankruptcy court. In one case, the consumer argued unsuccessfully that one bankruptcy filing was effective for the person’s entire life regardless of when the obligation being collected was incurred. The system does not work this way.

    Finally, as a practical matter for both sides, the FDCPA can be a very expensive statute for the nonprevailing party, especially if that party is the debt collector because of the consumer’s ability to obtain actual attorney fees. The amount of fees increases the longer the case stays in active litigation. Therefore, reasonable settlement offers from both sides can go a long way to saving the client and the court time and resources.

    Conclusion

    As the political and legal landscapes change, the case law involving consumer protection and creditor’s rights will inevitably change as well. While the picture of the least sophisticated consumer may not be a finished piece, the above guidance should make it a little clearer.

    Meet Our Contributors

    What keeps you grounded?

    Brandon E. BowlinI have been blessed with four amazing children and a beautiful and intelligent wife who happens to be an attorney as well. Inevitably, a question I always receive is, “are you going to let your children be attorneys?” The short answer is always no. The longer answer is for another article. People will always respond that it is in the blood, and they will naturally be good attorneys.

    I really never think about that until I get “lawyered” by my 9-year-old daughter. For some, this could be demoralizing, but I just find it really funny. For example, see how my trial skills failed one Saturday morning.

    Me: Did you clean your room?

    Daughter: No.

    Me: Why not?

    Daughter: Because you did not ask me to.

    Me: It’s implied, though, because you said you wanted more responsibility and for your room to look nice.

    Daughter: What does implied mean, dad?

    I just walked away defeated, but I am okay losing to my daughter. After all, with three daughters and a wife, my son and I will never win an argument.

    com bbowlin rsieh Brandon E. Bowlin, Rausch, Sturm, Israel, Enerson & Hornik LLC, Brookfield.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 15 U.S.C. § 1692.

    2 15 U.S.C. § 1692.

    3 15 U.S.C. § 1692a(3).

    4 Davis v. Hollins Law Firm, 832 F.3d 962 (9th Cir. 2016).

    5 15 U.S.C. § 1692e.

    6 15 U.S.C. § 1692e(2)(A).

    7 15 U.S.C. § 1692e(10). See alsoCambron v. Medical Data Sys. Inc., 379 B.R. 371 (M.D. Ala. 2007) (holding that collection agency, whose authority was limited to collection calls and letters, violated 15 U.S.C. § 1692e(5) and (10) in letter that implied to the least sophisticated consumer that her assets and wages might be in jeopardy, the letter stating that the collector was seeking information “to determine what further collection effort to take”).

    8 15 U.S.C. § 1692f(1).

    9 15 U.S.C. § 1692g(3). See also Greco v. Trauner, Cohen & Thomas LLP, 412 F.3d 360 (2d Cir. 2005) (holding that when letter was read by least sophisticated debtor, nothing in its current wording would discourage debtor from contesting the debt within the 30-day window).

    10 The least sophisticated consumer is the majority view. The Seventh Circuit uses the unsophisticated consumer standard with all claims under 15 U.S.C. § 1692e. See Lox v. CDA Ltd., 689 F.3d 818 (7th Cir. 2012); Wahl v. Midland Credit Mgmt., 556 F.3d 643 (7th Cir. 2009).

    11 Jensen v. Pressler & Pressler, 791 F.3d 413, 419 (3d Cir. 2015) (citing Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014)).

    12 Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993).

    13 Id. at 1319.

    14 Id. at 1320.

    15 Davis, 832 F.3d at 967.

    16 Id. at 965.

    17 Id. at 967.

    18 Helman v. Bank of Am., No. 15-13672, 2017 WL 1350728 (11th Cir. April 12, 2017) (unpublished).

    19 Id. at *3.

    20 Id. at *4.