A District Court judge in Alabama has granted a defendant’s motion to dismiss after the plaintiff could not remember if she sent a cease and desist letter to the defendant or the original creditor, and because the communication in question was one of three carve-outs in the Fair Debt Collection Practices Act that allow for an additional communication after a cease and desist has been communicated.
A copy of the ruling in the case of Russaw v. Scott & Associates can be accessed by clicking here.
The plaintiff sent a cease and desist letter either to the creditor or the collector to whom the account was placed. After the cease and desist letter was sent, the defendant sent a letter to the plaintiff, indicating that the defendant was terminating its collection efforts and that the collector or creditor may invoke specific remedies which are ordinarily invoked by such debt collector or creditor.
The plaintiff claims the letter violated Section 1692c of the FDCPA, which prohibits collectors from communicating with debtors when a cease and desist has been sent. But Section 1692c(c) of the FDCPA allows for three exceptions where a follow-up communication may be sent upon receipt of a cease and desist letter. The debt collector may (1) advise the consumer that the collector’s further efforts are being terminated, (2) notify the consumer that the collector or creditor “may invoke specified remedies” which they ordinarily invoke, or (3) notify the consumer that the collector or creditor “intends to invoke a specified remedy.”
The plaintiff also tried to claim that the letter contradicted itself by saying that further collection efforts were being terminated while allowing for the invocation of other remedies in the future.
“A debt collector — like a law firm — may well cease collection communications with the debtor while it explores legal remedies, such as wage garnishment,” wrote Judge Andrew Brasher of the District Court for the Middle District of Alabama, Northern Division. “The debtor still owes the debt, even if the debt collector must cease communications about it. Section 1692(c) expressly allows a collector to advise the consumer that further efforts to collect are being terminated, to notify the consumer that specified remedies may be invoked, or to notify the consumer that specified remedies are being invoked. The statute does not limit which exceptions the collector may use, nor does it limit the collector to choosing between the three. A letter that makes accurate statements that are required or allowed by the FDCPA is not false or misleading under that statute.”
