In Bravo v. Midland Credit Management, Inc., the plaintiff urged the U.S. Court of Appeals for the Seventh Circuit to take a liberal view of the Fair Debt Collection Practices Act’s (FDCPA) prohibition against contacting a consumer once he is represented by counsel, or after he has refused to pay a debt. The court dismissed all of plaintiff’s claims, shutting the door on an aggressive attempt to broaden the FDCPA’s reach.
Katiuska Bravo sued Midland Credit Management, Inc. in January 2014 for violations of the FDCPA, and reached a settlement that included the forgiveness of two of Bravo’s debts. Two months after the settlement was complete, Midland sent to two letters to the office of Bravo’s attorney, David J. Philipps, each of which was addressed to “Kaliuska Bravo C/O David J. Philipps.” The letters each requested payment of the debts from which Bravo had been released in the prior settlement. Bravo then sued, claiming that the letters violated the FDCPA and asserting they were efforts to contact a debtor who had legal representation and after that debtor refused to pay, and that the letters were a false and misleading attempt to collect on debts that had already been discharged.
At bottom, the question before the court was whether correspondence sent to the consumer’s attorney but bearing the consumer’s name constituted “continued communication with the consumer,” and the court answered with a resounding “no.” The Seventh Circuit held that, with the FDCPA, Congress did not intend that a situation would render it impossible for consumer and collector to communicate through counsel. No precedent indicates—and the court did not see fit to establish—that the mere inclusion of the consumer’s name on a letter sent to counsel constitutes communication with the consumer himself. Because the letters were sent to the consumer’s attorney and not the consumer himself, no violation had occurred.
The court’s conclusion regarding the “continued correspondence” issue informed its ruling on the “false or misleading” issue. In addressing the claim that the letters amounted to a false or misleading attempt to collect on debts already discharged, the court applied the “competent attorney” standard, and concluded that a capable attorney, even one who is not seasoned in debt collection, would not be deceived by the letters, and could reasonably discern that they regarded debts already discharged. Because the court had ruled on the “continuing correspondence” issue that the letters had been sent to the attorney and not the client, it could then apply “the competent attorney” standard rather than the “reasonable consumer” standard, and therefore conclude that no competent attorney would be deceived by the letters.
The ruling should elicit a deep sigh of relief from debt collectors. The Seventh Circuit has made a clear choice to neither expand nor extrapolate violations from communication with consumers where counsel is involved. When debtors direct their efforts to attorneys rather than directly at consumers, they fall within the bounds of FDCPA.