Home Debt CFPB Amicus Brief in FDCPA Case Signals Its Stance on Liability for False Statements | Alston & Bird

CFPB Amicus Brief in FDCPA Case Signals Its Stance on Liability for False Statements | Alston & Bird

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A&B Abstract:

On January 2, the Consumer Finance Protection Bureau (“CFPB” or “Bureau”) filed an amicus brief in Carrasquillo v. CICA Collection Agency, Inc. in support of Plaintiff-Appellant Carrasquillo. The brief challenges the District Court’s interpretation of the Fair Debt Collection Practices Act (“FDCPA”) in relation to a debt collector’s intent when making potentially incorrect statements.

Background:

Section 1692e of the Fair Debt Collection Practices Act (“FDCPA”) provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”  The statute creates a private right of action for consumers to sue debt collectors who break the law by lying or providing wrong information while collecting a debt.

The Carrasquillo Case:

The Carrasquillo case originated in September 2019, when the Plaintiff-Appellant initiated bankruptcy proceedings.  Defendant CICA Collection Agency had been engaged to collect an alleged debt from the Plaintiff-Appellant.  In October 2020 (during the pendency of the bankruptcy proceedings), CICA mailed a letter stating that such debt was “due and payable,” and that the Plaintiff-Appellant could be sued if the debt was not paid.  The letter did not acknowledge the pending bankruptcy proceeding.

In October 2021, the Plaintiff-Appellant sued the Defendant in the District Court for the District of Puerto Rico, alleging that the letter violated the FDCPA, for, among other grounds, making a false statement (given the operation of the automatic stay under 11 U.S.C. § 362).

CICA filed a Motion to Dismiss, arguing that it did not know Carrasquillo filed for bankruptcy because it had not received notice of the bankruptcy proceeding.  Therefore, CICA argued, it did not intentionally make a false statement, and should not be subject to liability.  The District Court granted CICA’s Motion to Dismiss, agreeing that the FDCPA did not intend to punish unintentional false statements.  The Plaintiff-Appellant appealed to the First Circuit.

The Amicus Brief:

In its brief, the CFPB argued that Section 1692e’s prohibition against the use of “any false, deceptive, or misleading representation” extends to the provision of wrong information. Thus, the FDCPA allows a consumer to sue a debt collector for providing wrong information that the collector should have known was wrong – such as, the CFPB argues, CICA’s claim that it could sue to collect debt from a consumer who had filed for bankruptcy.

Intent:

The CFPB’s primary contention is that intent is not a factor in determining liability under the law.  The Bureau supports this by emphasizing that elsewhere in the FDCPA, Congress described as an example of a violation “communicating or threatening to communicate to any person credit information which is known or which should be known to be false.” (Emphasis added.) Section 1692e indicates that these examples are provided “[w]ithout limiting the general application of the foregoing [statement]…” Accordingly, the Bureau argues, debt collectors cannot “stick their heads in the sand and claim ignorance” to avoid liability from incorrect statements – regardless of whether such statements were intentional.

Compliance Procedures:

In its brief, the CFPB also argues that debt collectors must show that they have procedures in place designed to prevent unintentional mistakes (such as that that the Defendant claims occurred in the Carrasquillo matter). Section 1692k of the FDCPA protects a debt collector from liability if the violation “resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” (Emphasis added.)  By the terms of that provision, the Bureau argues, “it is not enough for a debt collector to merely show that its conduct was unintentional to avoid liability; rather, it must also show that the violation was the result of a ‘bona fide error’ and that the collector maintained ‘procedures reasonably adapted to avoid’ that error.”

Takeaways:

If the appellate court rules for the Plaintiff-Appellant, favoring the CFPB’s argument, debt collectors will need to revisit their compliance procedures to ensure they do not accidentally make false statements to consumers.

The CFPB’s brief also highlights its ideal enforcement position regarding the FDCPA, which would include a zero-tolerance policy for debt collectors making false statements (barring a bona fide error which the debt collector would have the obligation to prove).

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