UNITED STATES OF AMERICA
August 27, 1992
James R. Palmer
Dear Mr. Palmer:
This is in response to your request for a staff opinion concerning the Fair Debt Collection Practices Act ("FDCPA" or "Act"). I apologize for the delay in responding. As I told you on the telephone today, I was not certain from your two letters whether you sought a written reply if Commission staff agreed with your analysis of the Commission Staff Commentary on the FDCPA ("Commentary"). Because I now know that you would like such a written response, I am sending this informal staff opinion.
You ask whether your retailer clients or your law firm would be covered by the FDCPA if they "make a claim for civil damages against an alleged shoplifting offender." Retailers, to the extent that they are creditors, are not covered by the FDCPA. Under certain circumstances, however, your law firm would be covered by the Act. The central issue is whether your retailer clients' claims for civil damages are "debts" for purposes of the FDCPA.
The FDCPA defines "debt" as any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
The Commentary states that the definition of "debt" does not include tort claims "because they are not debts incurred from a [transaction] (involving purchase of) property ... or services ... for personal, family or household purposes." (The Commentary contains a typographical error, using the word "transportation" where the word "transaction" was intended.)
When I spoke with you today, you stated that all of the civil claims brought by your retailer clients against alleged shoplifters are tort claims. These claims are not "debts" as the term is defined in the FDCPA. Thus, when your law firm attempts to enforce the claims, it is not attempting to collect "debts," and its collection activities with respect to these claims are not covered by the FDCPA.
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