LEXSTAT 1-8 DEBTOR-CREDITOR LAW § 8.02

Debtor-Creditor Law
 
Copyright 2009, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I Consumer Credit
 CHAPTER 8 Fair Debt Collection

1-8 Debtor-Creditor Law § 8.02

§ 8.02 Persons and Transactions Covered by the Fair Debt Collection Practices Act

 
Coverage by the FDCPA is largely determined by the definition of "debt collector."n1 That definition is lengthy and incorporates three other terms, also defined in the Act--"consumer," "debt," and "creditor."n2 This makes coverage questions the most complex area of the FDCPA.
 
The Act generally applies to collection agencies, attorneys, creditors using a false name, creditors collecting for another person, certain activities of repossession companies, suppliers or designers of deceptive forms, purchasers of debt after default, debt poolers (for profit), and check "guarantee" services.
 
The Act may not require compliance of any person who does not "regularly" engage in debt collection. The Act applies only to "debts" which arise out of consumer not business transactions.
 
 Generally excluded are creditors (collecting their own debts)--retail stores, banks, finance companies, etc.; assignees (before default)--car finance companies, banks, etc.; government employees, business debts, and nonprofit credit counseling services.
 
A purchaser of a debt in default is a debt collector under the FDCPA, not an exempt creditor.n3
[1] Persons Who Must Comply as Debt Collectors  
[a] Any Person Whose Principal Business Is Collecting Debts Is a "Debt Collector."
 
The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts.n4
 
This phrase and the one following it provide the general language defining members of the class "debt collector," the term triggering most provisions of the Act. Since nearly all collectors use a telephone or the mails in their business, the limiting requirement of this part of the definition is that the collector's principal business purpose must be to collect consumer obligations.
 
Under the foregoing definition, most debt collection agencies and their employees are covered by the FDCPA, whether or not they own the debts they collect. Collection lawyers may be covered by this phrase as well as the following phrase in the Act. A collection agency's collection law firm is a debt collector, and the collection agency may be liable for the firm's FDCPA violations.n5 The definition may cover flat-rate debt collectors (companies hired by a creditor for a flat fee simply to mail debtors letters requesting payment directly to the creditor) and credit counselors who, for a profit, arrange for payment of consumers' debts. It may cover a check guarantee service.
[b] Any Person Who Regularly Collects Debts Owed to Another Is a "Debt Collector."
 
The term "debt collector" means any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.n6
 
The persons covered by this language overlap to a great extent those covered by the preceding phrase defining "debt collector." Many collectors are brought in, however, who are not covered by the preceding phrase. These include collectors who partly engage in a business other than collecting debts (e.g., extending credit, practice of law or credit reporting).n7 Ownership of the debt is not necessarily determinative of coverage.n8
[c] Creditors Using False Names Are "Debt Collectors."n9 
 
Creditors are generally exempt from FDCPA coverage.n10 This sentence of the FDCPA makes a creditor subject to the Act when it uses a name other than its own which suggests the involvement of a third-party collector, poses as a collection agency, or uses a third party's name in its collection efforts. The creditor may also become subject to the Act with its in-house lawyer who collects on letterhead suggesting that it is from a separate law office.n11 A creditor does not run afoul of this provision by referring a customer to its internal loan counseling department.n12
[d] Repossession and Foreclosure Companies Are Treated as "Debt Collectors" Under Some Circumstances
 
For the purpose of section 1692f(6) of this title,n13 such term ["debt collector'] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.n14 This sentence contained in the definition of "debt collector" subjects repossession companies and others whose principal business is enforcing security interests to the FDCPA's proscriptionn15 of specific unfair or unconscionable means of enforcing security interests.
 
Because the 15 U.S.C. section 1692f(6) proscriptions only apply if nonjudicial means are being used, security interest enforcers are constrained by this phrase only if they resort to self-help repossession, nonjudicial foreclosure, or other out-of-court enforcement tactics as opposed to replevin or similar judicial proceedings.n16
 
Some courts have split on the application of other provisions of the FDCPA to non-judicialn17 and judicial foreclosure.n18
 
In 2006 the Fourth and Fifth Circuits independently came to the conclusion that foreclosure lawyers may come under the general definition of debt collector subject to all of the FDCPA requirements. In Wilson v. Draper & Goldberg, P.L.L.C.,n19 the Fourth Circuit held that the FDCPA applies to lawyers conducting a deed of trust foreclosure, at least when the lawyers tell the debtor how much must be paid to reinstate the mortgage. The court rejected all three of the foreclosure lawyers' arguments: (1) because they were engaging in a foreclosure, no "debt" as defined by the Act was involved; (2) they were exempt as "fiduciaries;" and (3) as enforcers of a security interest, they were only required to comply with the requirements of 15 U.S.C. § 1692f(6). A dissenting opinion argued that the debt collectors should have fallen within the exemption for fiduciaries.
 
The court found two bases to reject the argument that there was no debt involved. First, the court rejected several decisionsn20 that held that merely enforcing a security interest did not involve an obligation to pay money; to the contrary, following the Third Circuit's reasoning in Piper v. Portnoff Law Assocs. that the FDCPA may apply to in rem proceedings, the court held that the underlying mortgage was a qualifying transaction involving the loan of money. Second, the court pointed out that the collection attorneys in any event had sought payment of money in this case by writing the homeowner stating how much was to be paid to reinstate the mortgage.
 
The Fifth Circuit reached the same result in Kaltenbach v. Richards, a pro se case, without referring to the Fourth Circuit decision.n21 The Fifth Circuit looked at the breadth of FDCPA definition of debt collector and held that the complaint's allegation that the foreclosure attorney was a "debt collector" engaged in "collection activities" sufficed to state a claim against the foreclosure attorney for failing to provide the notice of debt validation rights. The foreclosure attorney argued that the last sentence of the definition of debt collector limited its compliance obligation to only the requirements of section 1692f(6). The Fifth Circuit rejected that construction and deferred to the Federal Trade Commission's interpretation that an enforcer of security interests could be subject to all the requirements of the FDCPA, not just section 1692f(6).n22 The Fifth Circuit pointed out that any other interpretation would make the FDCPA's convenient venue requirement for foreclosure in section 1692i superfluous, violating an important principal of statutory construction.
 
Finally, the Fifth Circuit noted that the focus of the key definition of "debt collector" is "regular" collection activities, not the specific foreclosure activities, of the foreclosing attorney. If the foreclosure attorney regularly seeks or obtains payments from the consumer, it would be subject to all the requirements of the FDCPA, even if it was not seeking payment at the time of the FDCPA violation in the particular case.
 
The overwhelming majority of foreclosures result in payment of the mortgage through refinancing or the homeowner's sale of the home before the foreclosure sale, or the reinstatement of the mortgage after payments, rather than foreclosure of the mortgage.n23 This strongly suggests that foreclosure attorneys are regularly collecting debts while they pursue foreclosure.
[e] Flat Rate Collectors or Others Supplying Forms That Misrepresent Extent That They or Another Is Involved in Collecting a Debt Violate the Act
 
This sectionn24 is the only proscription of the Act not limited to "debt collectors." Even individuals specifically excluded from the FDCPA definition of "debt collector," e.g., creditors, are liable for violations of this section.
[i] Extent of Participation in the Collection Process
 
There is no set minimum level of sufficient participation in the collection of a debt to take a flat-rate or any other collector outside the proscription of section 1692j.
[ii] Lawyers Must Review File Before Signing Collection Letter
 
By implication, a letter on a lawyer's letterhead would imply greater participation than a letter on a collection agency's letterhead because of the stronger remedies usually pursued by attorneys. If an attorney, for example, supplied form letters to a creditor or collection agency and did not otherwise participate in the collection efforts in the manner implied by the letters, he or she violates this section.n25
[f] Lawyers Regularly Collecting Consumer Debts Must Now Comply With All FDCPA Provisions
[i] 1986 Attorney Amendment        
  
An attorney who regularly collects consumer debts is subject to all provisions of the FDCPA.n26 Even in-house counsel collecting a debt for his or her employer may be covered if he or she sends collection letters that are designed to make the debtor believe that a private attorney has intervened.n27
[ii] Scope of FDCPA Attorney Coverage
 
The definition of "debt collector" includes any attorney "who regularly collects or attempts to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another."n28 The key to the breadth of this definition is the concept of engaging in collection activities "regularly." An attorney meets the "regularly" test if the attorney engages in debt collection in more than isolated instances, if it is a minor but regular part of the attorney's practice, or if the attorney collects debts more than a few times in a year. An attorney who very seldom collects debts is not covered.n29
 
The Second Circuit found in Goldstein n30 that a lawyer issuing 145 notices demanding delinquent rent in a twelve-month period as part of an ongoing relationship with a landlord was "regularly" collecting debt as required to be covered by the FDCPA despite the collection work constituting less than.5% of his revenues. The court reviewed five factors: the number, frequency, and pattern of collection communications; staff and systems assigned to collections work; and an ongoing relationship with the creditor.n31 The court also noted that a law firm's marketing of collection services would also weigh in favor of finding regularity.
 
The Goldstein decision is significant as it joins the Fifth Circuitn32 in rejecting a line of decisions that focuses on the law firm's debt collection cases or revenues as a portion of its total cases or revenues, rather than looking at the whole picture including the number of collection cases handled.n33 Other courts find ninety collection cases in five months or four percentn34 of the caseload sufficient to meet the regularity test but not just twenty-threen35 or thirty-fiven36 collection cases in one year or so.
 
The FDCPA's legislative history elaborates on what was meant by "regularly": "The requirement that debt collection be done regularly would exclude a person who collects a debt for another in an isolated instance, but would include those who collect for others in the regular course of business."n37
 
In contrast, the Sixth Circuit held that a collection lawyer must be substantially involved in debt collection work to be covered by the FDCPA. The Sixth Circuit inferred that the removal from the FDCPA of a broad exemption for attorneys in 1986 raised the threshold from "more than isolated instances of collection" and "in the regular course of business" to a requirement of "substantial" attorney debt collection for coverage to take effect.n38
[iii] Issues Unique to Attorney Debt Collectors
[A] Venue Provision
 
The venue provision requires that debt collectors bring suit only in the district where the consumer signed the contract upon which the suit is based or where the consumer resides.n39 Actions to enforce an interest in real property may be brought only where the property is located.n40 Any less protective state law venue provision is preempted.n41
[B] Communications With Third Parties
 
The Act's limitations on communication with third parties raise special issues in the context of discovery and post-judgment proceedings. However, the FDCPA contemplates the need to deal with third parties during litigation.n42
[C] Notice of Validation Rights
 
As a result of amendments to the FDCPA years apart, the initial notice of validation rights and of the debt collection purposen43 need not be made until later if the first communication by a collection attorney to a consumer is a formal pleading. In that situation the notice of the consumer's debt validation rights must be sent in the initial communication after any formal pleading. This is likely to be in the collection attorney's conversations with the consumer about the validity of the claim against the consumer or regarding payment of the claim or judgment. Because the later event triggering the debt validation notice may not be readily anticipated by the debt collector's system, it may be safer to provide the debt validation and the debt collection warning in a pre-suit demand letter encouraging the airing of disputes before suit. This helps assure that the collection suit is the collection device of last, rather than first, resort.
[D] Other Pitfalls to Avoid
 
Most of the practices forbidden by the FDCPA have long been prohibited by ethical standards applicable to attorneys. Violation of these ethical standards may now lead to the consumer's recovery of FDCPA actual and statutory damages and attorney fees.
 
Collection attorneys should avoid these other common trouble areas:   

 Threatening to sue when there is no intention or ability to do so;
 
 Misrepresenting the source of the collection letter or the attorney's involvement (by allowing a collection agency to send out a demand letter over the name of an attorney);n44
 
 Imposing specious deadlines;
 
 Misleading representations as to the effect of litigation;
 
 Filing suit other than in the court permitted by 15 U.S.C. section 1692.
[iv] Attorney Liable for Allowing Signature to Appear on Collection Letters Without Reviewing File
 
 15 U.S.C. section 1692e(3) prohibits misrepresenting that "any communication is from an attorney." Where an attorney exercised no control or supervision over a debt collection letter, the appearance of his name and signature on a letter would violate 15 U.S.C. sections 1692e and 1692e(10).n45
 
A Seventh Circuit decision revisits the issue of how much involvement is sufficient for a collection lawyer to sign his name to a collection letter without misrepresenting that he is involved as a lawyer in the collection of the debt. The decision builds on prior decisions of the court, and finds a lawyer's cursory information about individual GM credit cards insufficient to make a legal judgment that there was a legitimate claim to pursue. 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. Factors showing lack of attorney involvement were:
 
 The creditor made the decision about which consumers should receive the letters.
 
 The creditor did not provide sufficient information about the account for the collection lawyer to reach an independent, professional judgment about liability and collectibility.
 
 The use of the same form letter in every case and the great volume of accounts to which it was sent reinforced the finding that there was no use of professional judgment.
 
 The collection lawyer's role in dealing with responses to the letter was not more than ministerially referring most of them back to creditor. He had no authority to negotiate payments or settle the debt. 
 
 The collection lawyer's flat fee of $2.45 per letter suggested that he was not being paid by the creditor for his legal judgment but rather for the marquee value of his name.
 
 The collection lawyer was not ever authorized to file suit for the creditor.n46
[v] Second Circuit Allows Lawyer to Dun and Disclose Before Reviewing Claim
 
In a decision that will give a big boost to the amount of junk mail consumers get, the Second Circuit, in Greco v. Trauner, Cohen & Thomas,n47 allowed a lawyer to send mass-mailed duns before making any evaluation of the legal merits of a claim as long as the lawyer clearly discloses to the consumer that the lawyer has not reviewed the claim. The court reasoned that even an unsophisticated consumer would not be misled where the collector's disclosure was clear and there was nothing in the letter to suggest the sender was actually acting in the capacity of a lawyer.
 
With no struggle, the court distinguished its prior decisions in Clomon n48 and Miller n49 finding deception when a lawyer sent a dun without being involved in evaluating the legality of the claim. The court was able to build on hedging language in the Miller decision:

[T]he use of an attorney's signature implies--at least in the absence of language to the contrary--that the attorney signing the letter formed an opinion about how to manage the case of the debtor to whom the letter was sent.n50   

The court distinguished Clomon and Miller based on the disclaimer, the lack of any language in the letter conflicting with the disclaimer, and the lack of any signature on the letter. The Clomon and Miller dunning letters contained strong requests for payment, facsimile signatures, and no disclaimers. In this case there was a clear disclosure, only a request the consumer call the law firm, the debt validation rights notice, and the law firm's name typed on the signature line.
[vi] FDCPA and Lawyers' Ethical Obligations Intertwine
 
Concepts of unfairness for FDCPA purposes can be established by the American Bar Association's Code of Professional Responsibility or the state bar association's equivalent and its predecessors.
[A] Lawyers' Collection Letters Must Avoid False Threat of Suit
 
There can be little doubt that a letter from an attorney inherently conveys the impression that litigation is imminent. This impression is false if the attorney does not in fact have the authority and intention to promptly bring suit. In that case, this can be an ethical violation.
 
A collection letter may mislead even further by implying that a lawsuit has already been filed against the debtor. An American Bar Association ethical opinion condemned a collection letter that simulated legal process because, "unless carefully read, [it] will create the false impression that suit has been filed."n51
 
The Fair Debt Collection Practices Act prohibits false or misleading representations, but also prohibits false or misleading implications.n52
[B] Interstate Collection Letters Must Avoid Misrepresenting Lawyer's Authority to Sue
 
A lawyer who sends a collection letter into a state in which he or she is not admitted to practice, without disclosing that fact, may violate the FDCPA.n53 The failure to disclose the states in which the lawyer is admitted to practice is a deceptive omission.
[C] Representing Only Part of the Effects of Suit Is Deceptive
 
A demand letter can be deceptive if it fails to mention that post-judgment remedies include exemptions and due process protections: a judgment debtor is entitled to notice, and some of his or her property is safeguarded by exemption statutes. Without these qualifications, the mention of post-judgment remedies in an attorney's letter is misleading, can cause undue concern, and violates the FDCPA.n54
[D] Intermingling Activities of Collection Agency and Attorney May Be Unlawful   
 
Collection agencies and lawyers that work together must take care that their roles are kept separate. Consumers should not be confused about whether a collection letter is from the attorney or the collection agency. Misrepresentation of the source of a document is specifically prohibited by the FDCPA. n55 The FDCPA also specifically prohibits the false representation or implication "that any communication is from an attorney."n56
 
The FTC takes the position that it is deceptive for a collection agency to send a letter under an attorney's letterhead without the attorney's supervision.n57 This has also been found to be an ethical violation. 
[g] FDCPA Applies to Debt Buyers   
 
The FDCPA covers debt buyers who engage in debt collection activities.n58 In Federal Trade Comm'n v. Check Investors, Inc., n59 the Third Circuit held that it is immaterial that the defendants actually owned the debt they were trying to collect; that did not make them creditors under the Act. The focus must be on ''whether a debt was in default when acquired to determine the status of 'creditor' vs. 'debt collector.' ''n60 This reinforces the case law on the FDCPA's applicability to the growing number of debt buyers. One court held that the debt buyer's parent company was also a debt collector since the facts showed that the parent was ''thoroughly enmeshed in the debt collection business'' and ''a significant participant in the debt collection process.n61 The seminal decision on the coverage of debt buyers is Kimber v. Federal Fin. Corp. n62 The coverage of a debt buyer that delegates all of the actual debt collection work depends on the nature and level of its involvement with the collection entity.  
[2] New Coverage of Collection of Federal Income Taxes by Collection Agencies
 
In 2004 Congress extended new protections to taxpayers when it enacted a new law that allows the Internal Revenue Service to hire private debt collection agencies to collect federal tax debts from financially distressed families.n63 The new law provides that "[t]he provisions of the Fair Debt Collection Practices Act shall apply to any qualified tax collection contract."n64 The FDCPA does not apply, however, to the extent superseded by (1) the FDCPA-like prohibitions already in the tax code, (2) tax code restrictions on contact with third parties, and (3) "any other provision" of the tax code.n65 In other words, private tax collectors must comply with the FDCPA except where the tax code specifies conflicting duties.
 
As part of this new law, Congress specifically created a private cause of action against a debt collector who recklessly, intentionally, or negligently disregards any provision of the tax code or any regulation under it.n66 The taxpayer has the right to bring suit in federal court for "actual, direct economic damages," with a cap of $1,000,000 ($100,000 in the case of negligence), plus costs.n67 Unlike suits where the misdeeds are committed by IRS employees, the plaintiff need not exhaust administrative remedies. However, the new law insulates the IRS from any misconduct by the private collection, permitting suit to be brought against the private tax collector only, not against the United States.n68
 
It is also clear that private collectors are liable for common law torts committed in the course of collecting tax debts. The new law explicitly provides that the civil remedy it creates "shall not be an exclusive remedy."n69 It also appears that the taxpayer should be able to assert a claim under the FDCPA against the collector. While the new law says that the FDCPA shall apply to the contract, the legislative history shows that Congress meant by this language that provisions of the FDCPA "apply to the private debt collection company."n70 It is reasonable to interpret the new law as applying the FDCPA in full, including its private cause of action, to private tax collectors. The enactment of this language also suggests that Congress disagrees with the courts that have construed the term "debt" in the FDCPA narrowly as not to applying to tax debts.n71 The IRS expects to have private debt collectors collecting account in early 2007.
[3] Persons Specifically Excluded From the Term "Debt Collector."
 
Because "debt collector" is the principal triggering term for all but one n72 of the FDCPA's requirements, the ten exclusions from the term shield exempted individuals from most provisions of the Act.
[a] Creditors' Employees Collecting in the Name of the Creditor Are Specifically Excluded
 
This sectionn73 excludes from most FDCPA requirements a creditor's in-house collectors who use the creditor's true business name.n74 Creditors lose their exemption if they use a false name that indicates a separate debt collector is involved.n75 Even if they used the creditor's true business name, however, they may be covered if their collection contacts were designed to make the debtor believe that an independent collector had intervened.n76 By implication, creditor corporations collecting their own debts in their own name are also excluded because they can only act through their employees and officers. While a creditor may be responsible for its collection agencies' violations of state law, the weight of authority is that the FDCPA does not impose vicarious liability on FDCPA exempt creditors for their collection agencies' FDCPA violations.n77
[b] A Commonly Owned or Affiliated Corporate Collector Collecting Only for Its Affiliates Is Specifically Excluded if It Is Not Principally a Debt Collector
 
This exceptionn78 applies to debts transferred from one corporate affiliate or commonly owned organization to another, so long as the transferee is not principally a debt collector and collects transferred debts only for corporate affiliates.n79 One finance company branch, for example, may transfer a debt to a corporate affiliate in another city or state because the consumer owing the debt has moved, without falling outside this exclusion.
 
This section does not exclude from coverage unaffiliated companies transferring debts n80 or companies whose principal business is debt collection, regardless of their affiliation with the transferring entities. Nor does the exclusion apply where the transferee failed to disclose its relationship to the original creditor, leading the consumer to believe that a third party was now pursuing collection of the debt.
[c] State and Federal Officials Performing Their Duties Are Specifically Excluded
 
The exclusionn81 applies only to local government, state,n82 or federal employees and only if their attempts to collect particular debts are within their official duties. It does not apply to a private collection agency hired to collect debts for a state or federal agency.n83
 
A collection agency running a criminal bad check diversion program was denied its motion for summary judgment claiming exemption.n84
[d] Process Servers Are Specifically Excluded
 
This exclusionn85 applies, for example, to a sheriff serving a subpoena upon a witness to appear in an action for debt. It only applies while the process server is actually serving process in connection with a suit on a debt.
[e] Bona Fide Nonprofit Consumer Credit Counselors Are Specifically Excluded
 
Most cities have nonprofit counseling services or adjustment bureaus established and maintained by major credit extenders. These organizations commonly accept referrals of financially distressed consumers and help consumers arrange out-of-court plans to pay their creditors in an orderly fashion. To qualify for the exclusion, the counseling agency must be nonprofit, must engage in such service in good faith, and must receive and distribute payments, as well as provide financial counseling.n86
[f] Persons Collecting Debts as Part of Bona Fide Fiduciary or Escrow Arrangements Are Specifically Excluded
 
This sectionn87 excludes the above-named activities when practiced by bank trust departments, escrow companies, and other bona fide fiduciaries. Two decisions held a student loan guarantee agency was exempt under this provision because of the federal requirements for the agency's handling of reserve funds in a fiduciary manner.n88 In the Fourth Circuit, foreclosure attorneys argued that, because they were the substitute trustee of the deed of trust,n89 they were exempt as a fiduciary under 15 U.S.C. § 1692a(6)(F)(i). The court held that the defendant did not fall within the FDCPA fiduciary exemption since "actions to foreclose on a property pursuant to a deed of trust are not 'incidental' to its fiduciary obligation. Rather, they are central to it."n90
[g] An Extender of Credit Collecting on Behalf of Another a Debt It Originally Extended Is Specifically Excluded
 
This section n91 excludes from the general coverage of the Act a credit extender's collection (in its own name) of a debt that it originally extended and then sold or assigned to another creditor while remaining responsible for some or all aspects of collection. 
[h] Persons Collecting Debts Not in Default When Obtained Are Specifically Excludedn92 
 
The Senate report emphasized the application of this section to "mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing. ..."n93 This exempts servicers of mortgages,n94 student loans,n95 rental agreements,n96 utility bills,n97 medical debts,n98 and other consumer transactionsn99 if they obtained the debt before default.
 
This exemption was not available to a check authorization/guarantee service which was owed the debt only as the result of the payee merchant assigning the debt already in default pursuant to a contract for check authorization/warranty services.n100
[i] The Enforcer of a Security Interest in an Account Used as Collateral for a Commercial Loan Is Specifically Excluded
 
Retailers and lenders sometimes use consumer accounts receivable as collateral for their own commercial financing. Upon default by the retailer or lender, the secured party may collect the payments due on the retailer's or lender's consumer accounts receivable. In such situations, the secured party may not be considered a debt collector by virtue of this section.n101
[j] Check Collection Companies Disguised as District Attorneys
 
In 2006 Congress amended the FDCPA, legalizing in some circumstances district attorneys' profitable contracts with check collection agencies that operate invisibly in the name of the local district attorney.n102 So-called check diversion collection agencies, such as American Corrective Counseling Services,n103 are a new type of collection firm that collect dishonored checks for merchants in the name of the local district attorney by scaring consumers with the threat of criminal prosecution and jail time. This method of operation violates the FDCPAn104 unless the company is operating within the terms of the 2006 amendment. Typically these firms tell consumers that they can avoid prosecution if the consumers pay them very high fees to enroll in a financial responsibility class. The fees may exceed a small check by more than $150.
 
This shady business is likely to move into more neighborhoods, subjecting financially strapped families to threats of criminal prosecution and jail plus an additional very high collection fee if they cannot cover promptly a dishonored check.
 
The FDCPA exemption for check collections would not apply unless:

 The district attorney's office establishes the collection program and supervises and controls the check collection agency;
 
 The collection agency complies with the state penal laws and its contract with the district attorney;
 
 The collection agency does not exercise prosecutorial discretion;
 
 The district attorney determines that probable cause exists for a bad check prosecution;
 
 The check writer has failed to pay the check after demand for payment of the amount of the check;
 
 The district attorney makes a second determination of probable cause if the consumer disputes liability for the check based on identity theft, forgery or fraud;
 
 The collection agency does not impose fees greater than authorized by the district attorney.

Furthermore, the exemption would not apply to checks where:

 The check was postdated in connection with a payday or similar loan;
 
 There was a stop payment order issued in good faith and with reasonable cause;
 
 The check was dishonored because of an adjustment by the bank of the account on which it was drawn without notice to the issuer of the check;
 
 The check was for partial payment of a preexisting debt where partial payment had been accepted;
 
 The check writer was incompetent or not of legal age; or
 
 The check was to pay for an illegal transaction.

Where the check collection company falls outside the exemption, they will be subject to the FDCPA and are likely to be in violation because of the way they operate in the name of the district attorney and often charge fees in excess of those permitted by state law. Some consumers have pursued a civil rights claim in cases involving these companies.n105
[4] Transactions Covered by the Act
[a] The Act Covers Only Debts Allegedly Owed by a Natural Person
 
Artificial entities, such as corporations, cannot be consumers.n106 The Act does not limit its protections to residents or citizens of the United States.
[b] Consumer Debts, Not Commercial, Are Covered
 
This definitionn107 limits the Act to coverage of the collection of consumer debts--those for personal, family, or household purposes; commercial debts are not within the definition.n108 The term "debt" includes consumer installment credit, such as small loans and retail installment sales, and other types of credit. The use of the loan proceeds is determinative of whether the loan is a "debt" within the coverage of the Act.n109 If the purpose for which the goods or services were acquired changes, the original purpose is determinative.n110 A court found that the FDCPA did not apply where an employee had received benefits under an employee benefit plan that may give rise to a reimbursement obligation but did not respond to the plan's inquiries about reimbursement, so that the insurer was forced to sue.n111
[i] A Broad Range of Consumer Debts Are Covered
 
The decisions generally construe the term broadly enough to include dishonored checks,n112 rent,n113 medical bills,n114 utility bills,n115 insurance bills and claims,n116 student loans,n117 campground memberships,n118 credit cards,n119 condominium fees,n120 and judgments. The weight of authority excludes the following transactions from the term "debt": taxes; child support; shoplifting civil claims; fines; car accidents; and torts.n121
 
The term "primarily for personal, family, or household use" was borrowed from the Truth in Lending Act ("TILA").n122 It was intended to exclude transactions primarily for business purposes.n123
[ii] Coverage of Noncontractual Obligations Questioned
 
It seems reasonable to construe the term "debt" to include tax and other noncontractual obligations (such as tort claims) that are incurred by individuals and not in connection with conducting business. Some courts, however, have taken a different view, finding for example that tax assessments were not covered "debts,"n124 that child support payments assigned to the state were not "debts,"n125 and that a bank's efforts to recover an over-credited deposit amount is not a "debt."n126 A federal law passed in 2004 applies FDCPA protections to collection agencies collecting federal tax debts for the IRS.n127 On the other hand, the Seventh Circuit has interpreted the statute broadly, noting that there is no exception in the FDCPA even for consumers who may have fraudulently written a bad check, and it would not create one.n128
 
Given the possibilities for broad or narrow construction of the word "transaction," and, hence, the term "debt," the proper question is what best serves the congressional purpose for the FDCPA. It is clear that the primary function of the term "debt" was to exclude business transactions. The purposes of the FDCPA are remedial: to eliminate collection abuses, redress injuries inadequately protected by prior law, and encourage fair debt collection methods.n129
[5] FDCPA Protection of Persons Other Than Consumers
 
The FDCPA protects consumers--persons obligated or allegedly obligated to pay any debt--from violations of the Act. In addition, the private remedies provided by the Act are available to "any person."n130 Many of the protections afforded to "any person" are not limited by the terms "consumer" and "debt,"n131 but apply to employers, creditors, relatives, friends, and neighbors affected by violations connected with consumer transactions. Including nonconsumers within the coverage of the FDCPA furthers its purpose of eliminating abusive debt collection practices.n132
 
Actual damages are not required for standing under the FDCPA as the attempt to recover unlawful fees was made actionable by Congress without a requirement of actual damages to recover statutory damages.n133 The FDCPA applies whether or not the plaintiff owes the subject debt or any other debt or obligation.n134 The focus of the FDCPA is on the conduct of the debt collector, not on the conduct of the consumer.n135
[6] Collection Activities Covered by the FDCPA
 
The FDCPA was broadly written to cover all direct or indirect actions and attempts to collect consumer debt.n136 For example, the debt collector may be held liable for statements made to the consumer's attorney.n137 Sending false information about a delinquent payment to a credit reporting agency is debt collection conduct.n138 The FDCPA may apply to a debt collector's response to a consumer's inquiry.n139 Activities of a debt collector that are totally unrelated to collecting debts are not covered by the FDCPA.
[a] "Communications" Covered by the FDCPA
 
The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.n140
 
A broader interpretation of the term "communication" is required to give all provisions of the FDCPA effect. As long as the collector is directly or indirectly attempting to collect a debt, any interchange of information to accomplish the collection of that debt must be construed as a "communication." No other construction is consistent with the purposes of the other provisions of FDCPA. The FTC advises that a summons and complaint that refer to the debt is a communication covered by the Act.n141 However, there is a recent split of appellate decisions on this issue, neither of which cited the current FTC position.n142
[b] Litigation Activities Covered by the FDCPA
 
Litigation activities by debt collectors are covered by the FDCPA.n143 A split on this issue by the Seventh and Eleventh Circuits may create some uncertainty. The Seventh Circuit in Thomas v. Law Firm of Simpson & Cybak n144 held that the 15 U.S.C. § 1692g(a) obligation to send the consumer a validation notice was triggered by the collection lawyer filing a summons and complaint against the consumer when the summons and complaint was the initial communication with the consumer. The split 6-4 decision disagrees with the Eleventh Circuit's contrary decision in Vega v. McKay.n145
 
The FDCPA provides consumers with an informal way to dispute a debt or find out who the original creditor was. The FDCPA debt validation provision requires the debt collector to give the consumer notice of this right in the "initial communication" or separately within five days of that communication. The collection firm argued that the broad definition of the term "communication" in the FDCPA should be narrowly construed to not include a summons and complaint. The Seventh Circuit followed the plain language of the FDCPA and kept an enormous loophole from developing in that Circuit. While there is some disagreement, a violation of the FDCPA may occur in a letter to the attorney representing a consumer.n146

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FOOTNOTES:
(n1)Footnote 1.  15 U.S.C. § 1692a(6). See    Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) . 
(n2)Footnote 2.  15 U.S.C. § 1692a(3), (4), (5). 
(n3)Footnote 3.   Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir. 2003) . 
(n4)Footnote 4.  15 U.S.C. § 1692a(6) (Supp. II 1979). See also  Scally v. Hilco Receivables, L.L.C., 2005 U.S. Dist. LEXIS 13122 (N.D. Ill. June 23, 2005) (debt buyer would qualify as debt collector had it acted through retained counsel). 
(n5)Footnote 5.  See  Ditty v. CheckRite, Ltd., 973 F. Supp. 1320 (D. Utah 1997) . See also  Kimber v. Federal Fin. Corp., 668 F. Supp. 1480 (M.D. Ala. 1987) . 
(n6)Footnote 6.  15 U.S.C. § 1692a(6). See, e.g.,  Oppong v. First Union Mortg. Corp., 407 F. Supp. 2d 658 (E.D. Pa. 2005) (Wells Fargo was debt collector under "regularity" prong of FDCPA, where it obtained 356 defaulted mortgages in course of its business of acquiring over 550,000 mortgages in year; court reasoned that it was frequency with which mortgage servicer collected defaulted mortgages that was determinative). 
(n7)Footnote 7.   Crossley v. Lieberman, 868 F.2d 566 (3d Cir. 1989) (attorney routinely collecting consumer debts was a debt collector). See  Durkin v. Equifax Check Servs., Inc., 2002 U.S. Dist. LEXIS 20742 (N.D. Ill. Oct. 28, 2002) (defendant check authorization/guarantee service regularly engaged in the business of collecting debts where it collected over a million checks per year, although that number constituted less than 1% of the checks processed, because the initial focus of "regularity of debt collection depends on sheer volume," standard met here.);  Campion v. Credit Bureau Servs., Inc., 2000 U.S. Dist. LEXIS 20233 (E.D. Wash. Sept. 19, 2000) (corporate debt collector was liable for the misconduct of its attorney and its employees). See also  Russell v. Standard Fed. Bank, 2002 U.S. Dist. LEXIS 12334 (E.D. Mich. June 19, 2002) (FDCPA claim dismissed where plaintiff failed to provide the court with sufficient information as to whether defendant law firm collected debts regularly or how it violated the Act.). See  Berndt v. Fairfield Resorts, Inc., 337 F. Supp. 2d 1120 (W.D. Wis. 2004) (timeshare resort management association was a debt collector because it regularly collected debts by sending 4700 payment notices a year, some on delinquent accounts, for amounts owed to a homeowner's association, even though the letters amounted to less than one percent of its management activities). See Wesley v. Calvary Inv., L.L.C., 2006 U.S. Dist. LEXIS 27391 (E.D. Pa. May 9, 2006) (data furnisher/debt collector may be subject to both FCRA and FDCPA). See also  Roybal v. Equifax, 2006 U.S. Dist. LEXIS 22380 (E.D. Cal. Apr. 14, 2006) (credit reporting agency did not collect debts either directly or indirectly on behalf of themselves or others). 
(n8)Footnote 8.  See  Ransom v. Telecredit Serv. Corp., 1992 U.S. Dist. LEXIS 22738, at 13 (D. Md. Feb. 5, 1992) (exception to the creditor exclusion in § 1692a(4), which applies to "any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another," applied to a computerized check authorization service that regularly attempted to collect on dishonored checks purchased from its subscribers because the debts were in default when purchased and debts originally belonged to another.). See also  Kimber v. Federal Fin. Corp., 668 F. Supp. 1480, 1485 (M.D. Ala. 1987) ;  Winterstein v. Crosscheck, Inc., 149 F. Supp. 2d 466 (N.D. Ill. 2001) (court rejected check guarantee service's arguments that it was not a debt collector). 
(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). 
(n30)Footnote 30.   Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56 (2d Cir. 2004) . 
(n31)Footnote 31.   Id. at 62-63 . 
(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 § 8.03[2] infra. 
(n43)Footnote 43.  See National Consumer Law Center, Fair Debt Collection, § 4.2.8.5.4(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). 
(n46)Footnote 46.   Nielsen v. Dickerson, 307 F.3d 623 (7th Cir. 2002) . 
(n47)Footnote 47.   Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360 (2d Cir. 2005) . 
(n48)Footnote 48.   Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) . 
(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) . 
(n63)Footnote 63.  Pub. Law No. 108-357, § 881 (Oct. 22, 2004). 
(n64)Footnote 64.  26 U.S.C. § 6304(e). 
(n65)Footnote 65.  Id., cross-referencing 26 U.S.C. §§ 6304, 7602(c). 
(n66)Footnote 66.  26 U.S.C. §§ 7433A, 7433(a). 
(n67)Footnote 67.  26 U.S.C. § 7433, incorporated by reference in § 7433A(a). 
(n68)Footnote 68.  26 U.S.C. § 7433A(b)(1), (4). See also 26 U.S.C. § 6306(d) (no federal liability for acts or omissions of private tax collectors). 
(n69)Footnote 69.  26 U.S.C. § 7433A(b)(3). Cf. 26 U.S.C. § 7433(a) (cause of action created for collection abuses by IRS employee is exclusive remedy for recovering damages resulting from such action). 
(n70)Footnote 70.  Conference Report 108-755 (Oct. 7, 2004). 
(n71)Footnote 71.  See § 4.4.2.3, infra. 
(n72)Footnote 72.  15 U.S.C. § 1692j. 
(n73)Footnote 73.  15 U.S.C. § 1692a(6)(A). 
(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. See 26 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). 
(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.).