FDCPA Case: Talking To Consumer After Knowing Consumer Has A Lawyer

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When a consumer informs a debt collector, in a phone call, that the consumer has a lawyer, the only thing the collector can do is ask for the name and number of the lawyer. Nothing else in the phone call.

In Backlund v. Messerli & Kramer, P.A., a case decided by the United States District Court for Minnesota (Judge Tunheim), on August 17, 2012, this issue was discussed.

The Fair Debt Collection Practices Act (FDCPA) says the following:

(a) COMMUNICATION WITH THE CONSUMER GENERALLY.
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt-

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer….

In Backlund, the consumer told the lawfirm she had a lawyer but the lawfirm continued to question the consumer and continued to send letters to the consumer, rather than the lawyer.

So the consumer and her husband sued the lawfirm who requested that the case be dismissed.

The Backlunds claim that 15 U.S.C. §1692c(a)(2) prohibited any comments Steve made during the phone call with Shannon Backlund (except to ask the name and contact information of her attorney) after she informed M&K that she was now represented. The Court, construing the facts in the light most favorable to the Backlunds, finds that Steve’s remarks are the type of communication prohibited by 15 U.S.C. § 1692c(a)(2): Shannon Backlund told Steve she was represented by counsel and Steve nevertheless continued to ask questions related to the collection of the debt. Once a debtor discloses that he or she has an attorney, the collector could continue the conversation to confuse the debtor or to interfere with the debtor’s choice to seek counsel. The FDCPA is designed to deter such conduct. See, e.g., Peters v. Gen. Serv. Bureau, 277 F.3d 1051, 1054-55 (8th Cir. 2002) (discussing the purposes of the FDCPA and the “unsophisticated consumer” test); see also Minn. R. Prof. Conduct 4.2 & cmt 1 (noting the importance of protecting a represented person from “possible overreaching by other lawyers” and interference with the client-lawyer relationship).

This is simply one example of how collectors break the law and we appreciate the judge following the law as it is written instead of changing the law to suit the debt collectors.

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