Supreme Court to consider whether a fax sent to a debtor’s employer violates the prohibition against third party contact under the Fair Debt Collection Practices Act.

HOT ON THE PRESSES….SUPREME COURT TO HEAR A NEW KEY FAIR DEBT COLLECTION PRACTICES ACT CASE

 

Olivia Marx owed a student loan that General Revenue was assigned to collect. GR sent a fax to Ms. Marx’s employer. This form displays GR’s name, logo, address, and phone number, and bears an “ID” number representing GR’s internal account number for Ms. Marx. The form indicates that its purpose is to “verify employment” and requested employment information”; blanks were left for the employer to fill in the individual’s employment status, date of hire, corporate payroll address, and position, and to note whether the individual works full-or part-time. in which it identified itself as a debt collector. Under the Fair Debt Collection Practices Act (“FDCPA“), this is a clear violation Ms. Marx’s right to not have her debt communicated to a third party….right?….Not according to the 10th Circuit.

 

In Marx v General Venue, No 10-1363 (2011), the 10th Circuit held:

 

A “communication” is defined as the “conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2).

The facsimile in question is not a “communication” under the FDCPA. A third-party “communication,” to be such, must indicate to the recipient that the message relates to the collection of a debt; this is simply built into the statutory definition of “communication.” This fax cannot be construed as “conveying” information “regarding a debt.” Nowhere does it expressly reference debt; it speaks only of “verify[ing] [e]mployment.” Nor could it reasonably be construed to imply a debt. In order to substantiate the claim that the facsimile “conveys” information “regarding a debt,” either “directly or indirectly,” Ms. Marx had the burden of proving such a conveyance; the standard is not whether the facsimile could have had such an implication.

I dont know what the court was thinking, seriously, or understand its position. It one analyzes what the fax was communicating to the employer, one cannot escape the conclusion that GR was attempting to collect a debt. You might say that the form could also be viewed as part of a credit application made by Ms. Marx (assuming GR was a prospective credit grantor). Indeed, the court took this very stance and held:

 

A party may seek to verify employment status (without hinting at a debt) for any number of reasons, including as part of processing a mortgage, conducting a background check before hiring, or determining eligibility for an extension of credit. Verification of employment and wages in connection with a credit application with respect to a mortgage, background check before hiring or for credit are all generally preceded with a signed and often notarized statement from the consumer, authorizing the transmission of such information from the consumer’s employer.

 

More to come….The Supreme Court has agreed to hear this case. I am quite interested in what the high Court will have to say on this issue. For years, the Supreme Court has truly been the champion of the consumer in the FDCPA arena. However, this could all change if the Court upholds the 10th Circuit in this case.

I wonder if this case marks a turning point of some kind in the judicial interpretation of the FDCPA. After all, this statute is a pro consumer statute that is to be and has been liberally construed. The 10th Circuit, in my opinion, has stretched credulity by its own holding when it said that verification of employment can be held for many purposes without noting that those purposes usually require authorization from the consumer. In this case, there was no such authorization which makes it clear that the fax was sent by GR for some un-consumer friendly purpose.

I have to wonder of the pendulum of the liberal construction often given to the FDCPA is now swinging back towards a stricter construction or if its only the 10th Circuit that is reading the FDCPA in this manner.

Stay tuned.

If you have been victimized by a debt collector or have items on your credit report that are incorrect, call or email Attorney Gary Nitzkin for a free consultation toll free at (888) 293-2882. For more information about your rights as a consumer, visit our website at www.micreditlawyer.com, which is filled with informative videos and advice to help consumers. Michigan Consumer Credit Lawyers is here for you.

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