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Third Party’s FDCPA Claims Fail as Mother is Not a Consumer

  • Written by Steel Rose

The Eleventh Circuit contrasted §§ 1692d and 1692e with § 1692c, finding that §§ 1692d and 1692e protect any person-consumer or not-from abusive conduct, but that “[§] 1692c, as a whole, regulates debt collectors' communications with consumers. In contrast to other provisions, § 1692c explicitly refers to the ‘consumer' and clearly and necessarily distinguishes ‘consumers' from ‘attorneys' and other third parties. It is thus understood to protect only consumers and those individuals enumerated in § 1692c(d).” Id. at 1301 (internal citations omitted). In other words, § 1692c protects consumers from debt collectors who use inappropriate or abusive means to contact them, such as contacting the consumer at unusual times or contacting third parties in their stead. 15. U.S.C. §§ 1692c(a) and (b). It does not protect third parties themselves from debt collector contacts.

Judge Baverman correctly found that, applying Miljkovic, only consumers can bring claims under § 1692c. Joe is not a consumer as defined by the act, and therefore her § 1692c claim fails as a matter of law. Joe argues in her objection that the phone calls are “indirect communications” to Sosa, which falls under the  purpose of regulating “debt collectors' communications with consumers.” Miljkovic791 F.3d at 1301. Whether the phone calls were direct communications to Joe or indirect communications to Sosa is a distinction without a difference because it is Joe, not Sosa, who seeks to bring this claim. Section 1692c(b) covers communications “in connection with the collection of any debt, with any person other than the consumer, ” and therefore covers what Joe defines as an “indirect communication.” But it is a claim that only Sosa, as the consumer, has standing to bring. The Court adopts the R&R on this issue.

B. 15 U.S.C. § 1692e(11)

By contrast, Judge Baverman found that Joe, even as a non-consumer, could maintain her claim under § 1692e(11). Section 1692(e) provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” The section also lists conduct that constitutes a violation of the section but expresses that the specific conduct listed does not limit “the general application” of the statute. Joe, however, alleges that Capital Link violated § 1692e(11), specifically, which provides:

The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to
disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. To read the case click here.