11th Cir.

Holds Failure to Disclose Disputes Must Be In Writing

The U.S. Court of Appeals for the Eleventh Circuit recently held
that a collection letter sent to the consumers attorney is a
communication with a consumer within the meaning of 1692g of the federal Fair Debt Collection Practices Act
(FDCPA).
Additionally, the Court held omitting a statement that disputes must be in writing in a disclosure under 15 U.S.C.
1692g does not amount to waiver of that requirement by the debt collector, and is instead an omission of a material
term in violation of the FDCPA.
A copy of the opinion in Connie Bishop v. Ross Earle & Bonan, P.A., et al. is available at: Link to Opinion.
On Dec. 23, 2014, the defendant debt collectors sent a collection letter to the plaintiff debtors attorney. The letter
informed the plaintiff debtor that she had 30 days to dispute the debt, but did not inform her that she must dispute the
debt in writing.
On Feb. 18, 2015, the plaintiff debtor filed a complaint against the debt collectors under the FDCPA, alleging that the
letters violated 15 U.S.C. 1692g by failing to notify her about the in writing requirement. The plaintiff also alleged
that the debt collectors violated 15 U.S.C. 1692e(10), which prohibits using a false representation or deceptive
means to collect or attempt to collect any debt.
The trial court dismissed the complaint with prejudice for failure to state a claim. The plaintiff debtor appealed.
As you may recall, 15 U.S.C. 1692g of the FDCPA requires a debt collector to provide a consumer with a notice of
debt that contains:
a statement that if the consumer notifies the debt collector in writing within [a] thirty-day period that the debt, or any
portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.
15 U.S.C. 1692g(a)(4). This notice must be either contained in the initial communication with a consumer or
provided within five days of such communication. 1692g(a).
The Eleventh Circuit first looked to whether a debt collection letter sent to the consumers attorney qualifies as a
debt collection communication with a consumer to trigger the FDCPA. The debt collectors argued that, because the
letters were sent to the plaintiff debtors counsel, and not to the debtor herself, there was no debt collection
communication with a consumer.
The Eleventh Circuit previously addressed this issue in Miljkovic v. Shafritz & Dinkin, P.A., Case No. 14-13715 (11th
Cir., June, 2015), holding that conduct directed toward the consumers attorney is covered by the FDCPA.
Under Miljkovic, the FDCPA still applies even though the communications are sent to the consumers attorney. The
Eleventh Circuit noted that the FDCPA defines a communication as the conveying of information regarding a debt
directly or indirectly to a person through any medium 1692a(2). Therefore, the Court held, it follows that 1692g,
which applies to the initial communication with a consumer, can be triggered either by a direct communication to
the consumer or by an indirect communication to the consumers counsel.

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The Eleventh Circuit joined the Third, Fourth, and Seventh Circuits in holding a collection notice sent to a
consumers attorney is an indirect communication. The Court held that an attorney is a channel to the consumer,
and thus a collection letter sent to the consumers attorney is an indirect communication with the consumer.
Additionally, the Eleventh Circuit noted that 15 U.S.C. 1692c states that a debt collector may not communicate
with a consumer . . . if the debt collector knows the consumer is represented by an attorney . . . unless the attorney
consents to direct communication with the consumer. By employing the word direct in this manner, the Court held
that 1692c distinguishes between direct communication with the consumer permitted only with attorney
consent and indirect communication through the consumers attorney.
The defendant debt collectors argued that the in writing requirement should be analyzed separately from the other
15 U.S.C. 1692g protections. However, the Court held that there is no textual basis for treating the in writing
requirement differently from the other rights. Instead, the Court held, only by applying 1692g to attorney
communications can it be ensured that consumers receive both legal representation and the full protections intended
by Congress.
Thus, the Eleventh Circuit held that a collection letter sent to the consumers attorney is a communication with a
consumer within the meaning of 1692g.
The Court then looked to whether omitting the in writing requirement amounts to waiver of that requirement by the
debt collector. The debt collectors argued that debt collectors may waive the in writing requirement by omitting it
from the notice of debt, and thereby offer more protection to customers by accepting a less demanding means of
dispute than debt collectors are otherwise entitled to require. Thus, the debt collectors argued, omission of the in
writing requirement does not violate 1692g.
The Eleventh Circuit held that 1692g is clear that the debt collector shall notify the consumer of her right to
dispute the debt in writing, and that nothing in the statute suggests that the debt collectors may relax these
requirements.
Moreover, the Court held that the FDCPA already specified a remedy for violations of 1692g, and refused to create
a waiver remedy as argued by the defendant debt collectors here. Thus, the Eleventh Circuit held that omitting the
in writing requirement does not amount to waiver, but instead violates the FDCPA.
Lastly, the Court looked to whether the omission of the in writing requirement states a claim under 1692e.
The Eleventh Circuit recited that, in evaluating a communication under the FDCPA, courts use the least
sophisticated consumer standard.
As you may recall, the least sophisticated consumer may be presumed to possess a rudimentary amount of
information about the world and a willingness to read a collection notice with some care. However, the test has an
objective component in that while protecting naive consumers, the standard also prevents liability for bizarre or
idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.
The defendant debt collectors argued that the Eleventh Circuit should adopt a competent lawyer standard for
attorney communications. The Eleventh Circuit declined.
The Eleventh Circuit noted that few circuits have adopted the competent lawyer standard. The Seventh Circuit
limited the competent lawyer standard to misleading and deceptive behavior, but actual misrepresentations are not
subject to this standard. In addition, the Tenth Circuit embraced the competent lawyer standard only insofar as it
relied on the professional competence of attorneys to hold that explicit disclosure is not always necessary under
1692e(11). Both circuits excluded actually false statements from the competent lawyer standard.
The Eleventh Circuit found that the instant case is not one in which a lawyer would be less likely to be either

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deceived or misled than a consumer. The Court also found that the omission of in writing is also not innocent or
sufficient in context.
The Court held that, by omitting the in writing disclosure, the debt collectors misstated the law surrounding debt
verification requests. Such a misrepresentation, the Court noted, was not apparent on the face of the letter, which
the Eleventh Circuit suggested would state a claim even in jurisdictions that apply the competent lawyer standard.
The Eleventh Circuit found no basis in the FDCPA to treat false statements made to lawyers differently from false
statements made to consumers themselves. Therefore, Court held that the instant case is not an appropriate vehicle
to adopt the competent lawyer standard in any form.
In sum, the Court held that the initial communication here omitted a material term required by 1692g(a), and
misrepresented consumer rights under the FDCPA. Accordingly, the Eleventh Circuit held that the trial court erred in
dismissing the plaintiffs claims, and reversed the trial courts ruling.

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