Without taking a position on the merits of that lawsuit (tempting though it is), it raises a question that many law firms need to ask themselves: is your firm a “debt collector” under the FDCPA (which triggers numerous obligations, such as disclosing one’s status as a “debt collector” in communications, whether via email, U.S. mail, voice-mail)?
From a July 2009 decision from U.S. District Court Judge Harold Baer (S.D.N.Y.):
The FDCPA prohibits “debt collectors” “from making false or misleading representations and from engaging in various abusive and unfair practices.” The law applies to “attorneys who ‘regularly’ engage in consumer-debt-collection activity. ” Heintz v. Jenkins, 514 U.S. 291, 299 (1995).
That clears it up, right? Maybe not. Here, linked, is one court’s shot at putting some content to this requirement of “regular engagement” in “consumer debt collection,” although it is the U.S. Court of Appeals for the Second Circuit and, as lawyers know, the Eighth Circuit is not bound by its sister circuit’s gloss on the statutory language. (An Eighth Circuit decision touching on the subject matter but not directly on point is here.)
(And who would bear the burden of proof at trial as to whether the defendant is a “debt collector” under the FDCPA anyhow? The plaintiff. Could this be yet another area where the long arm of Iqbal/Twombly reaches? Does plaintiff need to plead “sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (that is, does the plaintiff have to plead more than “Defendant is a debt collector” as the plaintiff did in the case against Faegre?))