Under the Fair Debt Collection Practices Act , 15 U.S.C. § 1692 et seq. (“FDCPA”), a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer’s debt unless the communication falls under a statutory exception. One of those exceptions covers communication with a third party “for the purpose of acquiring location information about the consumer.” In Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355 (3d Cir. 2015) (No. 14-1114), the Third Circuit held, as a matter of first impression, that the burden is on the debt collector to prove that the challenged third-party communications fit within § 1692’s exception for acquisition of location information. Although the FDCPA is silent on the allocation of burden, the court held that the defense at issue was an exception to a statute’s general prohibition, and noted that courts routinely put the burden of proving a statutory exception on the party who claims its benefit. The court also observed that the language concerning the exception for acquisition of location information closely tracked other provisions of the FDCPA that have widely been recognized as affirmative defenses. Moreover, the court concluded that fairness and policy considerations further supported this result, given that the legislative history indicates that Congress considered the general prohibition on third-party communications to be extremely important, and the debt collector is most likely to be the party with particularized knowledge of the facts relevant to whether an exception to this general prohibition has been met.
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Third Circuit: Burden On Debt Collectors To Prove FDCPA Exceptions
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