NOTICE TO DEBT COLLECTORS

RE : FAIR DEBT COLLECTION PRACTICES ACT [15 U.S.C. 51692c(a)(2)]

A Collector May Not Contact a Consumer It Knows to be Represented by an Attorney

(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 ...

(b) 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;

This prohibits consumer contacts by a collector who knows the consumer is represented by an attorney with respect to the debt.)

... Once the collector learns that the consumer is represented by an attorney, the collector must deal exclusively with the attorney and should not ,contact the consumer even to confirm the attorney's retention. Nor is the collector safe in sending notices directly to the debtor that are conditions precedent to the enforcement of state law. 3 There is no requirement that the collector be formally notified of the representation; informal information may be sufficient .4 . . . A collector who knows a consumer is represented by an attorney on ,one debt may not be required to assume the attorney represents the consumer on other debts. However, notice to the collector that the attorney :-represents the consumer for all current and future debt triggers the requirement that the collector deal only with the consumer's attorney on all debts.

1. Clark 7. Schwabe, Williamson & Wyatt, Clearinghouse No. 44,831 (D.Or. 1990); Milliner v. Medical Consumer Counseling, Inc., Clearinghouse No. 37,146 (M.D. Fla. 1984) (consent decree) (collector agreed to cease communications with debtor upon notification that debtor was represented by counsel); Riot v. River City Adjusters, Inc., Clearinghouse No. 36, 823 (WD Mich. 1984) (stipulated settlement & dismissal) (repossession company settled FDCPA and state claims for $1250.00 without admitting wrongdoing. Complaint alleged that the repossession company communicated with a consumer known to be represented by a lawyer); Fourth v. United Adjusters, Inc., Clearinghouse No. 35,925 (D.Or. 1983) (sending a dunning letter to consumer known to be represented by counsel violates 15 U.S.C. § 1692(a)(2). It has no excuse that the letter informed consumer of default judgment); Dixon v. United Adjusters, Inc., 15 Clearinghouse Rev. 358 (No. 26,911) (D.Or. 198]) (two letters violated 15 U.S.C. § 1692c(a)(2) since consumer was represented by a lawyer before they were sent and that representation was implied to continue); Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or. 1981) (debt collector sent two collection notices to consumer after consumer, represented by counsel, filed FDCPA suit and thus violated 15 U.S.C.A. §1692c(a)(2) prohibiting communications with consumer represented by counsel); Minick v. First Federal Credit Control, Inc., Clearinghouse No. 31,425 (N.D. Ohio 1981) (collector's communications with consumer's separated wife after collector was notified that consumer was represented by lawyer violated 15 U.S.C. §1692c(a)(2). An earlier phone call may have violated 15 U.S.C.A. §1692c(a)(2) if debt collector knew plaintiff was represented by lawyer); Johnson v. Statewide Collections, Inc., 778 P.2d 93 (Wyo. 1989). See also Harris v. BWS Credit Serv., Inc. CV 80-L-104, Clearinghouse llo. 27,693 (D. Neb. 1980); Shorr v. American Collection Syss., inc. 14 Clearinghouse Rev. 755 (Clearinghouse No. 29,301) (S.D. Fla. 1980) (default judgment entered on claim that collector contacted consumer instead of consumer's attorney); Edwards, FTC Information Staff Letter (Feb. 7, 1991); (restriction in 15 U.S.C. 41692c(a)(2) applies to a consumer represented by an attorney at law, but not a consumer represented by a nonattorney with a power of attorney); Hollcraft, FTC Informal Staff Letter (May 10, 1988) (requirements of 15 U.S.C. §1692c(a)(2) apply only when an attorney at law is involved and not to a nonlawyer acting under power of attorney); FTC OFFICIAL STAFF COMMENTARY § 805(6).

2. Florence v. National Sys. Clearinghouse No. 36,545 (N.D. Ga. 1983) (collector violated 15 U.S.C. §1692c(a)(2) by sending a threatening letter after being served with consumer's FDCPA complaint)) Atteberry, FTC Informal Staff Letter (July 18, 1978).

3. Johnson v. Statewide collections, Inc., 778 P.2d 93 (Wyo. 1989) (sending represented debtor a demand for payment of a dishonored check that is required by statute was a violation). See also Clarke v. Schwabe, Williamson & Wyatt, Clearinghouse No. 44,831 (. Or. 1990) (sending represented debtor notice of sale required by state law, along with cover letter demanding payment, was violation).

4. FTC OFFICIAL STAFF COMMENTARY § 805(a)(2), discussed in 53.2. 5 supra [reprinted in Appx. J infra]

5. FTC OFFICIAL STAFF COMMENTARY § 807(a)(3), Herold, FTC Informal Staff Letter (Aug. 14, 1979).

Federal Trade Commission Staff Commentary

FAIR DEBT COLLECTION PRACTICES ACT Section 805- Communication in Connection With Debt Collection

Section 805(a) - Communication with the consumer. Unless the consumer has consented or a court order permits, a debt collector may not communicate with a consumer to collects a debt ... (2) where he knows the consume:- is represented by an attorney with respect to the debt, unless the attorney fails to respond to the communication in a reasonable time period, ...

1. Scope. For purposes of this section, the term "communicate" is given its commonly accepted meaning. Thus, the section applies to contacts with the consumer related to the collection of the debt, whether or not the debt is specifically mentioned.[53 Fed. Reg. 50104]

2. Consumer represented by an attorney (section 805(a)(2)). If a debt collector learns that a consumer is represented by an attorney in connection with the debt, even if not formally notified of this fact, the debt collector must contact only the attorney and must not contact the consumer.

A debt collector who knows a consumer is represented by counsel with respect to a debt is not required to assume similar representation on other debts; however, if a consumer notifies the debt collector that the attorney has been retained to represent him for other debts placed with the debt collector, the debt collector must deal only with that attorney with respect to such debts.

The creditor's knowledge that the consumer has an attorney is not automatically imputed to the debt collector.