A New York district court recently delivered a mixed bag of news on FDCPA claims involving third party communications. In Duran v. Midland Credit Management, Inc., 2016 U.S. Dist. LEXIS 85843 (S.D.N.Y. Jun. 30, 2016), a collection letter addressed to the consumer was sent to his brother's address. According to the complaint, the consumer never resided at the brother’s address, never provided the creditor with the address and never used that address to receive mail. The plaintiff’s brother opened the letter without the consumer’s consent and as a result, a rift was created between the brothers which the consumer contended caused him emotional distress. According to the plaintiff, the communication violated the FDCPA, including sections 1692c(b) and 1692c(a)(1) of the FDCPA.
Section 1692c(b) of the FDCPA generally prohibits debt collectors from communicating with most third parties except with the prior consent of the consumer. In support of its motion to dismiss, the debt collector pointed to the fact that the letter was properly addressed to the consumer and “plaintiff’s brother only learned of Plaintiff’s alleged debt after he violated federal criminal law by opening an envelope that was not addressed to him.” Id. at *7. The court agreed.
In reviewing the language of section 1692c(b), the court focused on whether the debt collector communicated with the consumer’s brother and the definition of “communicate”. Turning to the dictionary, the court held that the applicable definition was “to transmit information, thought, or feeling so it is satisfactorily received or understood…This definition implies a degree of intent on the part of the communicator that his communication will be received or understood by another.” Id. at *8. The court therefore concluded that a debt collector who addresses a sealed envelope to a consumer does not communicate with a third party “in connection with a debt” except to the extent the envelope itself reveals that the mailing is in connection with the collection of a debt. Simply put,”[i]t would be unreasonable to construe “communicate with” so broadly as to encompass the accidental transmittal of information to an eavesdropper or interceptor.” Id. at *9.
With respect to the consumer’s 1692c(a)(1), the news was not as good for the debt collector and the court denied the motion to dismiss. There, the consumer asserted the letter violated 1692c(a)(1) because, after previously sending correspondence to the consumer at his correct address, the debt collector sent a letter to the consumer at his brother’s address, an unusual place or place known or which should have been known to be inconvenient to him. The court found that even if the brother had simply delivered the envelope to plaintiff without opening it, defendant would still have communicated with plaintiff at an unusual or inconvenient place.
The opinion is worth considering, particularly its language regarding “eavesdroppers”. The court’s analysis of this issue may provide some small foothold for debt collectors – at least in the Southern District of New York- for some inadvertent third party disclosure issues. In cases where messages are left on cell phones for consumers and inadvertently overheard by third parties, this language coupled with the heightened expectation of privacy provided to cell phone communications, may be enough to preclude claims under section 1692c(b).