Debt Collectors...beware
I have talked about this issue once before, but a case just popped up showing me that not all of you are listening to my warning. Debt Collectors beware....a consumer does NOT have to posit a dispute to a consumer debt in writing. The Fair Debt Collection Practices Act ("FDCPA") has no such requirement. As debt collectors, we may all want our interactions with consumer/debtors to be in writing, but alas we do not live in a perfect world. See Richeson v Javitch, Block and Rathbone, 576 F. Supp2d 861 (2008).
In Richeson, the Plaintiff consumer alleged he was the victim of identity theft in connection with the debt that JBR was hired to pursue. JBR sent him a letter that stated:
Balance Due - $ 10,141,27This law firm represents the above creditor concerning the above balance due, which was placed with use for collection and such other action as necessary to protect our client's interests.
Although we are a law firm, at this time, no attorney has evaluated your case, or made any recommendations regarding the validity of the creditor's claims, or personally reviewed the circumstances of your account. If you fail to contact this office, our client may consider additional remedies to recover the balance due.
To discuss this matter, please contact: Shannon Green at (800) 837-4601 (toll free) weekdays during business hours.
Unless you, within thirty days after receipt of this notice, dispute the validity of this debt, or any portion thereof, the debt will be assumed to be valid by us. If you notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt and a copy of such verification will be mailed to you by us. Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor.
We as a debt collector are attempting to collect a debt and any information obtained will be used for that purpose.
Our request that you contact us by telephone does not affect the requirement under federal law that to obtain verification of the debt, you are required to notify us of a dispute in writing.
The court looked to the two requirements that JBR had under the FXCPA. The first requirement to inform the consumer that JBR will assume the debt to be valid unless notified by the consumer. The FDCPA does NOT require the consumer to posit a dispute to the debt in writing. But....the FDCPA requires a collector to inform a consumer that if the consumer wants written validation of the debt, that the consumer must make this demand in writing. In this case, the court noted that JBR complied with both notice requirements and did not violate the first requirement by demanding that the consumer posit his dispute in writing.
Moral of the story:
As a debt collector, be aware of the two separate and distinct notices that you must give the consumer. The debt collector must inform the consumer of his right to dispute the debt. The consumer does NOT need to provide this notice in writing. The second notice requirement requires the debt collector to inform the consumer of his right to get written verification of the debt. This requirement requires a written request from the consumer. Do not get these two requirements mixed up.
