CFPB files amicus brief in Ninth Circuit FDCPA case

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The CFPB, together with the FTC, has filed an amicus brief in Hernandez v. Williams, Zinman & Parham, P.C., a Fair Debt Collection Practices Act case on appeal to the U.S. Court of Appeals for the Ninth Circuit.

The case involves the FDCPA requirement in 15 U.S.C. §1692g(a) for “a debt collector” to send a validation notice either in “the initial communication” or “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt.” The issue before the Ninth Circuit is whether the requirement only applies to the first debt collector that contacts a consumer to collect a particular debt or to each debt collector that contacts the consumer to collect that debt.

The plaintiff in the case claimed that the letter she received from the defendant containing the validation notice violated the FDCPA because the notice did not include all required information. The defendant argued that it was not subject to the FDCPA validation notice requirement because its letter was not the “initial communication” the plaintiff received about the debt. According to the defendant, because the debtor had previously received a validation notice complying with the FDCPA from another debt collector, the defendant was a subsequent debt collector that had no obligation to comply with the validation notice requirement. 

The district court granted summary judgment to the defendant, concluding that the validation notice requirement did not apply to the defendant’s letter because it was not the initial communication that the plaintiff had received about the debt. According to the district court, the FDCPA’s plain text contemplated only one initial communication with a debtor on a given debt, meaning the initial communication from the initial debt collector.

In its amicus brief in support of a reversal of the district court’s decision, the CFPB argues that each debt collector that contacts a consumer — not just the first debt collector that attempts to collect a particular debt — must send a validation notice that complies with the FDCPA. According to the CFPB, §1692g(a) can naturally be read to apply to the initial communication of any debt collector, initial or subsequent, that contacts a consumer about a debt.

The CFPB also argues that for §1692g(a) to serve its purpose, which was to eliminate the problem of debt collectors attempting to collect the wrong amounts from the wrong consumers, it must apply to both initial and subsequent debt collectors. Finally, the CFPB asserts that to the extent there is any ambiguity in §1692g(a), the court should defer to the views of the CFPB and FTC (which shares concurrent enforcement authority with the CFPB).

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