UNITED STATES OF AMERICA
May 4, 1992
Giovanni S. LoPresti
Dear Mr. LoPresti:
This is in response to your March 4, 1992, request for a staff opinion concerning the debt collection practices of a law firm. You asked whether certain actions by the law firm constitute violations of the Fair Debt Collection Practices Act ("FDCPA" or "Act"), a copy of which is enclosed. You stated that an attorney who "is regularly engaged in a practice of debt collection, as well as other practices of law," has filed a lawsuit against a consumer. The attorney communicated six or more times with the consumer, and each communication "relate[d] to a legal process." You ask the following four questions, which I have paraphrased, concerning the attorney's actions with respect to the consumer.
1. Is the attorney obligated to provide the disclosures required by Sections 807 and 809 of the FDCPA, if all of the attorney's communications "concern a legal process"?
If the attorney is a "debt collector" for purposes of the FDCPA, he must include the 807 and 809 notices in debt collection communications. "Debt collector" is defined in Section 803(6) of the Act. I have enclosed a copy of the Commission staff's commentary on the FDCPA, which was reprinted in the Federal Register in December 1988 ("Commentary"). On Page 50102 of the Commentary, the staff clarifies when an attorney is a debt collector for purposes of the Act. I also am enclosing a packet containing many staff opinion letters on the subject of debt collection by attorneys. I am confident that a review of the Commentary and the packet of letters will provide you with an answer to this first question.
2. Does an attorney violate any provision of the FDCPA if he denies that he is covered by the Act when, in fact, he is covered?
No. Although the FDCPA prohibits a number of unfair or deceptive practices by debt collectors, it does not prohibit those who are covered by the Act from simply denying that they are covered.
3. Does the FDCPA prohibit collection agencies from counseling their clients to litigate against consumers?
No, the FDCPA does not prohibit such counseling.
4. Does the following statement, if made by a debt collector, violate the FDCPA? If the statement does not violate the Act, is it a deceptive means of obtaining information?
In my opinion the statement neither violates the FDCPA nor constitutes a "deceptive means of obtaining information."
The views expressed herein represent an informal staff opinion. As such, they are not binding on the Commission. They do, however, reflect the staff's current enforcement position.
Thomas E. Kane