Two years later, she obtained a copy of her credit report and saw that her debt as reported by MED-1 was not marked disputed.She subsequently filed a lawsuit against MED-1 in which she alleged it had violated the FDCPA (15 U.S.C. Section 1692(e)(8)) by reporting her debt to a consumer reporting agency (CRA) without noting it had been disputed. Having admitted the underlying facts, MED-1 asserted that it was entitled to rely on the bona fide error defense because the failure to report the dispute arose from an unintentional error and it maintained procedures reasonably adapted to ensure that it reported faxed disputes.

Cheatham then sued the collection attorney, Adams, in federal court for a violation of the FDCPA and Arkansas Fair Debt Collection Practices Act (AFDCPA). Cheatham alleged that when Adams sent an email to his attorney with responses to discovery requests, that email constituted an initial communication under Title 15 U.S.C. § 1692(g)(a) of the FDCPA. This also meant that Adams had to send a verification notice, as required in 15 U.S.C. § 1692(g)(a)(1)-(5), which she did not do.Title 15 U.S.C. § 1692(g)(a)(1)-(5), stated in relevant part below, required Adams to send written notice containing the following:(1) the amount of the debt;(2) the name of the creditor to whom the debt is owed;(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and(5) a statement that, upon the consumer’s written request within the thirty-d

The FDCPA was enacted in 1977 “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e) (emphasis added). The FDCPA only applies to “debt collectors,” not creditors, mortgagors, or mortgage servicing companies.

The FDCPA protects consumers from “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a), (b), (e). Critically, only “debt collectors” can be liable under the FDCPA. 15 U.S.C. § 1692.

In some cases, courts have found creditors vicariously liable for FDCPA violations committed by agents acting on their behalf. With this in mind, it is imperative that providers have foundational knowledge of the FDCPA and TCPA and that they or their counsel monitor enforcement actions by the CFPB.Federal Debt Collection Practices Act, 15 U.S.C. 1692 et seq. Only consumer debts – acquired primarily for personal, family or household purposes – are covered by the FDCPA.

The defendant then resumed collection efforts by sending another collection letter to the plaintiff, who sued for violations of the FDCPA, claiming that the defendant failed to mail him verification of the debt before reinitiating collection efforts. Judge Reed O’Connor of the District Court for the Northern District of Texas held that the FDCPA specifically requires that verification of the debt (or a copy of a judgment) be mailed to the consumer by the debt collector pursuant to 15 U.S.C. § 1692(g)(b). The court rejected the defendant’s argument to impose a more contemporary view of mailing, noting that Congress amended the FDCPA as recently as 2006 and did not change the requirements of § 1692(g)(b).

A district court in the Eleventh Circuit has joined the Fifth and Eighth circuits, along with a host of district courts throughout the country, in adopting the “benign language” exception to Section 1692f(8) of the Fair Debt Collection Practices Act, and has dismissed a claim based on a collection letter with a visible barcode containing a debtor’s account number. The case is Efran Martell v. ARS National Services, Inc., 2016 U.S. Dist. LEXIS 154163 (S.D. Fla. November 3, 2016).Under the FDCPA (15 U.S.C. § 1692), a debt collector “may not use unfair or unconscionable means to collect or attempt to collect any debt,” and the Act specifically prohibits “[u]sing any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.”Taken literally, this provision bars a debt collector from putting anything other than its own address, and possibly its name, on the outside of an envelope containing a collection letter.

Passed in March, the amendments revise several sections of the WVCCPA, including significant changes to statutory penalties and clarification on prohibited debt collection phone calls. While the changes signal a move closer towards the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (FDCPA), which affords certain protections to creditors, there remain significant distinctions that can pose a trap for the unwary business that crafts debt collection policies that only comply with the FDCPA.Creditor Collecting Its Own Debt Is Not Excepted A significant distinction between the WVCCPA and the FDCPA remains unchanged with the new amendments. Under the FDCPA, a creditor that collects its own debts is not a “debt collector,” and therefore is exempted from the requirements of the FDCPA. 15 U.S.C. § 1692(a)(6).

[20] Second, the New York regulation requires a debt collector to provide several disclosures to the consumer if the debt collector “knows or has reason to know that the statute of limitations for a debt may be expired, before accepting payment on the debt.”[21]Perhaps most controversially, one of the required disclosures is a statement that “suing on a debt for which the statute of limitations has expired is a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.,”[22] although nothing in the FDCPA expressly prohibits the collection of time-barred debt. Like the New York DFS, the CFPB also suggests the FDCPA prohibits the collection of time-barred debt.

In a precedential opinion rendered last week, the U.S. Court of Appeals for the Third Circuit held that the disclosure of a consumer’s account number through the transparent window of a debt collector’s envelope violates Section 1692f(8) of the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692, etseq. In so holding, the Third Circuit initially concluded that information visible through the window of a debt collector’s envelope is covered by Section 1692f(8), and the court then rejected the contention that the account number that could be seen through the window fell within any “benign language” exception to Section 1692f(8).