A District Court judge in Florida has granted a defendant’s motion to dismiss a consumer’s Fair Debt Collection Practices Act lawsuit, ruling that a written refusal to pay sent to one debt collector does not prohibit a different collector from contacting the consumer about the same debt.
The background: The plaintiff received an email in late April from a servicer informing him that his account with the original creditor had been purchased by a debt buyer, which was outsourcing collection of the outstanding balance to the servicer.
- The plaintiff replied to the email the same day, writing that he “[would] not make any payments.”
- Days later, the plaintiff received a letter from the servicer stating that his account had been moved into a “six-month accelerated prelegal collections track.” The letter included a privacy notice listing the servicer’s affiliated companies, and the defendant was not among them.
- Two days after that, the plaintiff received a collection letter from the defendant, a separate collection agency, identifying itself as a debt collector attempting to collect the debt owed to the debt buyer and offering several payment plans.
- The plaintiff sued, alleging the defendant violated Section 1692c(c) of the FDCPA by communicating with him after he had notified the servicer in writing that he refused to pay, and Section 1692e by creating confusion about which entity was authorized to collect the debt.
- The defendant moved to dismiss, arguing the plaintiff never notified it of his refusal to pay and that its letter contained nothing false or misleading. The plaintiff argued the defendants were engaged in a coordinated scheme and that the debt buyer’s knowledge of his refusal should be imputed to the defendant under agency principles.
The ruling: Judge Kathryn Kimball Mizelle of the District Court for the Middle District of Florida granted the motion, dismissing both claims against the defendant.
- Judge Mizelle wrote that the text of Section 1692c(c) ascribes liability only to the debt collector that actually received the consumer’s written communication, and does not contemplate an agency theory of liability. The plaintiff cited no authority for imputing the debt buyer’s knowledge to the defendant, and the judge noted that knowledge of a principal is not imputed to the agent.
- On the Section 1692e claim, the judge wrote that the plaintiff identified no provision of the FDCPA requiring a debt collector to inform a consumer that an account has been transferred, and that collecting on a debt without explaining prior transfers is not, without more, deceptive.
- “While the least sophisticated consumer standard is a low bar, [the plaintiff] cannot meet it,” Judge Mizelle wrote, noting the defendant’s letter identified itself by name, explained it was collecting on behalf of the debt buyer, and included all the disclosures the FDCPA requires.
- The claims were dismissed without prejudice, and the judge gave the plaintiff two weeks to file a second amended complaint addressing the order’s concerns.
