Second Circuit Clarifies FDCPA’s False Name Exception For Creditors

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On November 13, the U.S. Court of Appeals for the Second Circuit  held that where a creditor hires a third party to send collection letters but does not rely on the third party for any other bona fide efforts to collect the debts, the creditor can be held liable for violating the FDCPA under the statute’s false name exception to creditor immunity. Vincent v. The Money Store, No. 11-4525, 2013 WL 5989446 (2nd Cir. Nov. 13, 2013). In this case, a group of debtors filed a putative class action against a mortgage lender who purchased mortgages initially payable to other lenders and subsequently hired a law firm to send allegedly deceptive collection letters to borrowers on the lender’s behalf. Although creditors generally are not considered debt collectors subject to the FDCPA, the court determined in this case that a statutory exception to creditor immunity applied because the creditor, in the process of collecting its own debts, used a name other than its own, which typically would indicate that a third party is collecting or attempting to collect such debts. The court explained that the appropriate inquiry to determine whether a representation to a debtor indicates that a third party is collecting or attempting to collect is whether the third party is making bona fide attempts to collect the debts of the creditor or whether it is merely operating as a “conduit” for a collection process that the creditor controls. Because that inquiry requires a factual determination and because a jury could find that the law firm was acting only as a conduit for the lender, the lender could be held liable if the letters falsely indicated that the law firm was collecting the debt. The court affirmed the district court’s dismissal of the debtors’ TILA claims, holding that because the mortgage documents did not name the lender as the person to whom the debt was initially payable, the lender is not a “creditor” under TILA. However, after a review of TILA’s legislative history, the court identified for Congress an apparent oversight in TILA that “allows an assignee to escape TILA liability when it overcharges the debtor and collects unauthorized fees, where the original creditor would otherwise be required to refund the debtor promptly.” The court remanded the action for further proceedings.