A recent decision out of the Northern District of Georgia highlights how statutory language is still important when resolving matters under the FDCPA. In this case of Joe v. Capital Link Management LLC, the court held that the plaintiff could not state claims under Section 1692c and Section1692e as the plaintiff, the mother of the consumer, was not a consumer herself as contemplated by the FDCPA.
Debbie Joe (Joe) alleged that she received telephone calls from Capital Link Management LLC (Capital Link) regarding a debt owed by her daughter. She further alleged that, when she received the first call from Capital Link, she was asked to get a message to her daughter about a consumer debt, and Joe asked not to be contacted again. Joe alleges that she then received at least 15 more calls requesting that she have her daughter contact Capital Link, and that the voicemails left did not state that the call was from a debt collector. Joe asserted that these calls violated Section 1692c(b), prohibiting debt collectors from communicating with a third party; Section 1692(e)(11), prohibiting a debt collector from using false, deceptive, or misleading representations or means with the collection of any debt; and Section 1692d(6), prohibiting debt collectors from placing telephone calls without meaningful disclosure of the caller’s identity.
In addressing the claim under Section 1692c(b), the court looked to a previous Eleventh Circuit decision in Miljovik v. Shafritz & Dinkin¸ P.A., which discussed who is protected by the FDCPA and held that attorneys operating as debt collectors are prohibited from engaging in misleading or abusive conduct. In coming to this holding, the Eleventh Circuit found that the language of Section 1692c protects consumers only from debt collectors who use inappropriate or abusive means to contact them, such as contacting third parties in their stead.
Joe argued that the phone calls were “indirect communications” to Joe’s daughter, which would fall under the purpose of “regulating debt collectors’ communications with consumers,” and making the calls actionable under Section 1692c. The court found this argument unavailing, stating that whether the phone calls were direct communications to Joe or indirect communications to her daughter is a distinction without a difference, as it is Joe, and not her daughter, who brought the claims. Applying this rationale, the court held that, as only consumers can bring claims under Section 1692c, and as Joe is not a consumer as defined by the act, that Joe’s Section 1692c claim fails as a matter of law.
Using this rationale with the plaintiff’s Section 1692e(11) claim for the use of false, deceptive, or misleading representations regarding Capital Link’s failure to disclose it was a debt collector, the court again found that the plaintiff did not have standing as a non-consumer to bring a claim. Though the district judge agreed that the statute allows consumers and non-consumers alike to bring claims for abusive debt collection practices generally, Section 1692e(11), in particular, relates specifically to “initial communication[s] with the consumer.” Because the plaintiff could not allege she was a consumer, rather the consumer’s mother, the district judge held that the plaintiff did not have standing to bring a claim.
Though this opinion may lead to a sigh of relief, it further underscores the importance of ensuring that the FDCPA is kept in mind when communicating with third parties. Though the defendant in this case got away unscathed as they did not call the consumer directly, the court alluded that such calls may be actionable by the consumer.