Following the Eleventh Circuit’s decision in Bishop v. Ross Earle & Bonan, P.A., No. 15-12585, creditors and debt collectors should immediately review their practices to ensure that any communication to a debtor or a debtor’s attorney complies with the Fair Debt Collection Practices Act (FDCPA). This is especially true for FDCPA § 1692g(a)’s requirement that the debtor has a right to dispute the debt and that such dispute must be in writing.
Ross Earle & Bonan, P.A., sent a debt-collection letter to the attorney of debtor Connie Bishop. As required by the FDCPA, the letter properly informed Bishop that she had had thirty days to dispute the debt; however, the letter did not include the requisite notice that her dispute must be “in writing.” Bishop sued Ross Earle & Bonan for violating the FDCPA by failing to notify her of the “in writing” requirement, alleging that the omission of this notice was a false representation or deceptive means to collect a debt under the FDCPA. The trial court dismissed the complaint for failure to state a claim. Bishop appealed, and the Eleventh Circuit reversed.
First, the Court held that a debt-collection letter sent to the consumer’s attorney qualifies as a communication with a consumer for purposes of the FDCPA. While the federal circuits are divided on the question of whether, and when, the FDCPA regulates attorney communications, the Court joined the Third, Fourth, and Seventh Circuits in holding that a debt-collection notice sent to a consumer’s attorney is an indirect communication with the debtor. Second, the Court held that a debt collector cannot waive the FDCPA’s requirement that a consumer’s request for verification of a debt must be in writing by failing to notify the consumer of the requirement.
Third, the Court held that Bishop had alleged sufficient facts to state a claim that the omission of the “in writing” requirement is a false, deceptive, or misleading debt collection practice because the letter to Bishop omitted a material term required by the FDCPA. By omitting this requirement, the letter instructed Bishop that she could invoke her right to request verification of the debt by disputing her debt orally—a misstatement of the law surrounding debt-verification requests. This misrepresentation was not apparent on the face of the letter, meaning that neither the “competent lawyer” nor the “least sophisticated consumer” could be said to have notice of the “in writing” requirement after reading it. Accordingly, because Bishop’s allegations would be sufficient to state a claim even in jurisdictions that apply the “competent lawyer” standard, the Court declined to apply the “competent lawyer” standard on these facts. However, the Court noted that its opinion did not foreclose the adoption of the “competent lawyer” standard in other cases, such as where the alleged communication was simply “misleading” (as opposed to materially false), or in cases that involve “conduct inherent to the adversarial process,” such as asserting a legal position, presenting a legal argument, or invoking an available remedy.
The text of the opinion is available here.