District Court Finds that Communications Directed to a Consumer's Attorney may be Actionable Under the FDCPA

The Eastern District of Michigan denied a motion to dismiss brought by the attorneys for Atlantic Credit & Finance, Inc. in Misleh v. Timothy E. Baxter & Associates (E.D. Mich. 2011). The plaintiff consumer in this case asserted federal and state law claims against Timothy E. Baxter & Associates, after the firm sent a debt collection letter to the consumer's attorney.

The law firm initially represented Atlantic Credit & Finance, Inc. in a state-court action against the consumer, which was dismissed without prejudice after the firm failed to appear at a settlement conference. Atlantic Credit moved to reinstate the case, but the firm failed to appear at the hearing on that motion, as well. The case was never reinstated, and, two years later, the firm sent a letter to the consumer's attorney to attempt to collect the same alleged debt.

The law firm's letter to consumer's counsel was addressed to the consumer's attorney, but was seemingly directed at the consumer herself. The consumer then commenced this suit, alleging that the letter violated the Fair Debt Collection Practices Act through use of "false, deceptive or misleading representation or means," or "unfair or unconscionable means to collect or attempt to collect any debt." Atlantic Credit & Finance, Inc.'s attorneys sought dismissal for failure to state a claim upon which relief can be granted. The firm argued that the letter that gave rise to the consumer's claim was not actionable under the FDCPA because it was sent to the consumer's attorney, as opposed to the consumer himself.

The court first considered the language of the FDCPA itself to determine whether a debt collector's letter to a consumer's attorney fails as a matter of law to qualify as action or conduct prohibited by the FDCPA. While the Sixth Circuit had not yet addressed the question, there was a split of authority on the issue in other Circuits. This court, however, interpreted the FDCPA to prohibit debt collectors from making "false, deceptive, or misleading representations or employing unfair means to collect a debt, without delineating the classes of person against whom debt collectors may or may not take such actions."

The court further stated that questions as to whether a representation to a consumer's counsel is false, deceptive, or misleading, or whether a practice directed at a consumer's attorney is unfair or actionable, is better addressed through the "least sophisticated consumer standard." The Court thus concluded that the FDCPA claim was not subject to dismissal because the Court rejected the notion that communications directed to a consumer's attorney are not actionable under the FDCPA.

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