Basil J. Mezines, Esq.
Dear Mr. Mezines:
This is in response to the American Collectors Association's ("ACA's") request for two Commission advisory opinions ("Request") regarding the Fair Debt Collection Practices Act ("FDCPA"), which the association submitted pursuant to Sections 1.1 - 1.4 of the Commission's Rules of Practice, 16 C.F.R. §§ 1.1 - 1.4. The two issues will be addressed in the order in which they were presented.
"[The] starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). The language of Section 809(b) provides that, "[i]f the consumer notifies the debt collector in writing within the thirty-day period" that the debt is disputed, the debt collector must cease collection of the debt until verification of the debt is obtained and mailed to the consumer.(1) Where Congress intended that debt collectors cease their collection efforts during the thirty-day dispute period, it so specified: if, and only if, a consumer sends the debt collector a notice in writing. Congress did not specify that collectors must cease collection efforts during the dispute period even if consumers send nothing in writing.
The Commission has voiced this opinion in recent annual reports to Congress mandated by the FDCPA. As the Commission stated in the 1999 report, for example, "Nothing within the language of the statute indicates that Congress intended an absolute bar to any appropriate collection activity or legal action within the thirty-day period where the consumer has not disputed the debt." Letter from Chairman Robert Pitofsky to the Honorable Albert Gore, Jr. regarding Twenty-First Annual Report to Congress Pursuant to Section 815(a) of the Fair Debt Collection Practices Act, at 10 (Mar. 19, 1999) ("1999 Annual Report"). Because there appears to be some confusion regarding whether the thirty-day period is a dispute period or a grace period, the Commission has recommended in recent annual reports that Congress clarify the FDCPA by adding a provision expressly permitting appropriate collection activity within the thirty-day period, if the debt collector has not received a letter from the consumer disputing the debt. The Commission emphasized that the clarification should include a caveat that the collection activity should not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt specified. 1999 Annual Report at 10-11.(2)
Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999).
The Commission continues to believe that the thirty-day time frame set forth in Section 809 is a dispute period within which the consumer may insist that the collector verify the debt, and not a grace period within which collection efforts are prohibited. In response to the ACA's question, therefore, the Commission opines that Section 809(b) does permit a collection agency to either demand payment or take legal action during the thirty-day period for disputing a debt when a consumer from whom the collection agency is attempting to collect a debt has not notified the collection agency that the debt is disputed. The collection agency must ensure, however, that its collection activity does not overshadow and is not inconsistent with the disclosure of the consumer's right to dispute the debt specified by Section 809(a).
In responding to this issue, the Commission notes first that Section 809(a) of the FDCPA, 15 U.S.C. § 1692g(a), provides:
Section 803(2) of the FDCPA, 15 U.S.C. § 1692a(2), defines the term "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." In its Staff Commentary, Commission staff stated that the term "communication" "does not include formal legal action (e.g., filing of a lawsuit or other petition/pleadings with a court; service of a complaint or other legal papers in connection with a lawsuit, or activities directly related to such service)." 53 Fed. Reg. at 50101, comment 803(2)-2. Similarly, in the introductory portion of the Staff Commentary, Commission staff opined that "[a]ttorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the FDCPA, but those whose practice is limited to legal activities are not covered."(3) Id. at 50,100.
Seven years after the Staff Commentary was issued, the United States Supreme Court held that the FDCPA's definition of "debt collector," Section 803(6), 15 U.S.C. § 1692a(6), "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz v. Jenkins, 514 U.S. 291, 299 (1995). In arriving at this conclusion, the Court explicitly considered and rejected Commission staff's introductory remark regarding the coverage of litigation attorneys. Id. at 298. In light of Heintz, the Commission concludes that, if an attorney debt collector serves on a consumer a court document "conveying  information regarding a debt," that court document is a "communication" for purposes of the FDCPA.(4)
If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication."
According to the ACA's Request, some "state laws or state court rules  prohibit the inclusion of additional language such as the validation notice on documents filed with courts." Request at 9. The association asks whether the requirements of Section 809(a) are "supreme to," and thus preempt, these state laws or state court rules. Id. Preemption cases generally proceed from "the starting presumption that Congress does not intend to supplant state laws." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).(5) According to the Court in English v. General Electric Co., 496 U.S. 72 (1990):
Id. at 78-79 (omission in internal quotation in original) (citations omitted).
The preemption provision of the FDCPA, Section 816, 15 U.S.C. § 1692n, provides:
The Commission does not believe that this section expressly preempts state laws and court rules that prohibit attorney debt collectors from including validation notices in court documents. The quoted provision makes express that Congress did not intend to preempt the field, but allowed only for conflict preemption. However, there is no conflict preemption here.
First, there is no conflict preemption based on impossibility of compliance because it is possible for attorney debt collectors to comply with both the federal provision and the state provisions.(6) Instead of including such notices in court documents, attorney debt collectors in jurisdictions that prohibit validation notices in court documents may deliver the notices to consumers via some other medium -- either before serving the court document on the consumer or, if the court document is truly the first communication with the consumer, within five days of serving the court document.(7)
Second, there is no conflict preemption based on state law standing as an obstacle to the full accomplishment and execution of Congressional purposes and objectives. As Congress declared in Section 802(e) of the FDCPA, 15 U.S.C. § 1692(e), the purpose of the panoply of protections under the federal debt collection statute is:
The state provisions about which you inquire do not prevent consumers from receiving the full panoply of protections from abusive debt collection practices afforded by the FDCPA. The only FDCPA provision that could be affected by these state laws and court rules is Section 809(a). As noted above, an attorney debt collector who is prohibited from including the validation notice in court documents may deliver the notice to consumers before serving the consumer with the court document or, if the court document is the first communication with the consumer, within five days after serving the court document. Thus, even in a jurisdiction that prohibits validation notices in court documents, a consumer will receive the validation notice and learn, for example, that the debt collector must provide the consumer with written verification of the debt if the consumer disputes the debt within thirty days. State legislation that prohibits validation notices in court documents also does not stand as an obstacle to the promotion of "consistent State action to protect consumers against debt collection abuses." Consumers will receive their validation notices in jurisdictions that prohibit validation notices in court documents as well as in jurisdictions that permit the practice.
After reviewing state laws and court rules that prohibit validation notices in court documents under a preemption analysis, the Commission concludes that such state legislation is not preempted by the FDCPA.
By direction of the Commission.
Donald S. Clark
1. Section 809(b), 15 U.S.C. § 1692g(b), provides:
2. In the Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097 (1988) ("Staff Commentary"), and staff opinion letters, Commission staff have consistently read Section 809(b) to permit a debt collector to continue to make demands for payment or take legal action within the thirty-day period. See 53 Fed. Reg. at 50,109, comment 809(b)-1 ("A debt collector need not cease normal collection activities within the consumer's 30-day period to give notice of a dispute until he receives a notice from the consumer."); letter from John F. LeFevre, FDCPA Program Advisor, to S. Joshua Berger (May 29, 1997):
3. The introductory remarks were not part of the Commentary itself. The statement in the Commentary that the quoted remark referred to provided that the term "debt collector" does not include "[a]n attorney whose practice is limited to legal activities (e.g., the filing and prosecution of lawsuits to reduce debts to judgment)." 53 Fed. Reg. at 50,102, comment 803(6)-2.
4. In an opinion letter issued after the Heintz decision, Commission staff opined that "all pleadings must be considered 'communications' if they convey 'information regarding a debt directly or indirectly to any person through any medium.'" Letter from John F. LeFevre, FDCPA Program Advisor, to S. Joshua Berger (May 29, 1997). See also Mendus v. Morgan & Associates, 1999 Okla. Civ. App. LEXIS 140, at *19 (Okla. Civ. App. 1999) ("[A] pleading or a summons is a 'communication' under the [FDCPA].).
5. This presumption does not apply to all cases. In particular, the Supreme Court recently held that it does not apply to state laws bearing upon national and international maritime commerce. United States v. Locke, 120 S. Ct. 1135, 1148 (2000). Locke was apparently based on the relatively large traditional federal role in this area and the relatively small traditional state role, see id. at 1147-48, and does not affect the current analysis.
6. See Codar, Inc. v. Arizona, No. 94-16902, 1996 U.S. App. LEXIS 21536, at *14-15 (9th Cir. Aug. 19, 1996) (memorandum) (Arizona laws requiring debt collectors to be licensed in the state before they may contact consumers preempted by Section 816 to the extent they prevent unlicenced out-of-state collector from providing Section 809(a) validation notices to Arizona residents who contact such debt collectors to discuss alleged debts; preemption because unlicenced out-of-state collectors that send validation notice would violate state law).
7. The Request refers to a Commission staff opinion letter which advised that, "[u]nder the principles that the Supreme Court set out in Heintz v. Jenkins, law firms that are 'debt collectors' presumably must include Section 809 notices in connection with every summons, if the summons is the first communication with the consumer in connection with the collection of a debt." Letter from Thomas E. Kane to Gordon N.J. Kroft (Mar. 8, 1996). While the letter was not binding on the Commission, it does accurately interpret the statute. An attorney debt collector must provide the validation notice "in connection with every summons," if the summons is the first communication with the consumer in connection with the debt. As the Commission notes here, however, the validation notice need not be included in the summons itself. It may be delivered either before or within five days after the summons is served on the consumer.