UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C.
20580
May 4, 1992
Giovanni S. LoPresti
64 Snowmass Court
Absecon, New Jersey 08201
Dear Mr. LoPresti:
This is in response to your March 4, 1992, request for a staff
opinion concerning the debt collection practices of a law firm.
You asked whether certain actions by the law firm constitute violations
of the Fair Debt Collection Practices Act ("FDCPA" or
"Act"), a copy of which is enclosed. You stated that
an attorney who "is regularly engaged in a practice of debt
collection, as well as other practices of law," has filed
a lawsuit against a consumer. The attorney communicated six or
more times with the consumer, and each communication "relate[d]
to a legal process." You ask the following four questions,
which I have paraphrased, concerning the attorney's actions with
respect to the consumer.
1. Is the attorney obligated to provide the disclosures required
by Sections 807 and 809 of the FDCPA, if all of the attorney's
communications "concern a legal process"?
If the attorney is a "debt collector" for purposes
of the FDCPA, he must include the 807 and 809 notices in debt
collection communications. "Debt collector" is defined
in Section 803(6) of the Act. I have enclosed a copy of the Commission
staff's commentary on the FDCPA, which was reprinted in the Federal
Register in December 1988 ("Commentary"). On Page 50102
of the Commentary, the staff clarifies when an attorney is a debt
collector for purposes of the Act. I also am enclosing a packet
containing many staff opinion letters on the subject of debt collection
by attorneys. I am confident that a review of the Commentary and
the packet of letters will provide you with an answer to this
first question.
2. Does an attorney violate any provision of the FDCPA if
he denies that he is covered by the Act when, in fact, he is covered?
No. Although the FDCPA prohibits a number of unfair or deceptive
practices by debt collectors, it does not prohibit those who are
covered by the Act from simply denying that they are covered.
3. Does the FDCPA prohibit collection agencies from counseling
their clients to litigate against consumers?
No, the FDCPA does not prohibit such counseling.
4. Does the following statement, if made by a debt collector,
violate the FDCPA? If the statement does not violate the Act,
is it a deceptive means of obtaining information?
You must pay in full in our office or call. If you call,
you will be required to give your telephone number, place of
employment and other pertinent information. This is so we may
place a hold on your account.
In my opinion the statement neither violates the FDCPA nor constitutes
a "deceptive means of obtaining information."
The views expressed herein represent an informal staff opinion.
As such, they are not binding on the Commission. They do, however,
reflect the staff's current enforcement position.
Sincerely,
Thomas E. Kane
Attorney
Division of Credit Practices
Enclosures
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