One of the easiest ways your clients can get annoying debt collectors off their backs is to simply notify the collectors that they are represented by your firm. It is common that individuals who retain an attorney to file for bankruptcy protection cannot pay their attorney’s fees in full up front. During the weeks or months that they continue paying your fees, they receive no relief from the never-ending string of debt collection letters and phone calls.
According to the Fair Debt Collection Practices Act (FDCPA), “a debt collector may not communicate with a consumer…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…” 15 U.S.C. § 1692c(a)(2). So when debt collectors call, it is important to advise your clients to answer the phone. They should tell the debt collectors that they are represented by you or your law firm and give them your phone number. Motivated clients may even want to contact the debt collectors themselves to advise of your representation.
Once the debt collector has the consumer’s attorney’s contact information, even one phone call or letter to the consumer results in a violation of the FDCPA. Even where the consumer has suffered no actual damages, he can still recover statutory damages of up to $1000 plus costs and reasonable attorney’s fees. 15 U.S.C. § 1692k(a). If the debt collector does not leave the consumer alone, the settlement obtained from an FDCPA claim can provide much-needed financial assistance to someone in the position of many of our clients.
Courts have routinely given strict interpretation to this section of the FDPCA. Even if the consumer does not answer the debt collector’s call, simply placing that call violates the FDCPA, where the debt collector knows the consumer is represented by an attorney. McEndree v. Rash Curtis & Assocs., 2012 WL 3028010 (E.D. Cal. July 24, 2012). The prohibited communication subsequent to notice of attorney representation can even occur in the same conversation in which the consumer provides such notice. Backlund v. Messerli & Kramer, P.A., 2012 WL 3582963 (D. Minn. Aug. 17, 2012).
Nothing in the FDPCA requires written notice of attorney representation to invoke the requirements of 15 U.S.C. § 1692c(a)(2). Clayson v. Rubin & Rothman, L.L.C., 2010 WL 547476 (W.D.N.Y. Feb. 11, 2010). To establish a violation of 15 U.S.C. § 1692c(a)(2), a plaintiff must only show (1) that he was represented by an attorney with regard to that debt, and (2) that the debt collector had actual knowledge of such representation. Goodman v. S. Credit Recovery, Inc., 1999 WL 14004 (E.D. La. Jan. 8, 1999).
Two exceptions to this rule are worth noting. If the attorney fails to respond to a communication from a debt collector or if the attorney consents to the debt collector contacting his client directly, there may be no violation of the FDCPA. So when debt collectors contact your office, simply confirm representation of the client. You are under no obligation to negotiate with these collectors or to provide any other sensitive information about your client’s financial position.
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