FEDERAL APPELLATE COURT EXPANDS FDCPA | Key Points
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Last month the U.S. Court of Appeals for the Eleventh Circuit clarified and effectively expanded provisions of the Fair Debt Collection Practices Act (“FDCPA”) in Hunstein v. Preferred Collection & Mgmt. Services, Inc., 19-14434, 2021 WL 1556069 (11th Cir. Apr. 21, 2021). In Hunstein, a consumer debt collector (“Preferred”) hired a third-party company (“Compumail”) to mail out dunning letters. To facilitate that, Preferred sent Compumail private information about Hunstein’s collections account including that the debt concerned his son’s medical treatment and his son’s name, among other things.
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As a result of the dunning letter, Hunstein filed a complaint in federal court against Preferred alleging Preferred violated § 1692c(b) which prohibited such communications “without the prior consent of the consumer…” The lower court dismissed the case, but the appeals court reversed finding Preferred’s communication to Compumail was “in connection with the collection of any debt” based on the plain, “discernible ordinary meaning” of that phrase.
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The Court rejected Preferred’s argument that the communication must include a demand for payment and further refused to employ the “multi-factoring balancing test” suggested by Preferred finding neither argument persuasive. Lastly, the Court acknowledged the adverse impact its holding would likely have on the industry, but explained it was obliged to “interpret the law as written, whether or not…the resulting consequences are particularly sensible or desirable.”
