In Acosta v. Campbell, No. 07-10373 (11th Cir. Jan. 28, 2009), the plaintiff claimed that the defendants violated the FDCPA, specifically, 15 U.S.C. §1692c(b), by sending an allegedly confidential payoff letter to the attorneys for another one of her creditors, a defendant in her foreclosure action. Under a plain reading of the FDCPA, he argued, the only third parties with whom a debt collector may communicate are its own attorney or the consumer’s attorney and that [t]he statute does not create a blanket exception for all attorneys of all creditors to communicate about a consumer’s disputed debt. The district court agreed with the Magistrate who found that because it was a confidential payoff letter provided to the attorney for another creditor and because [a]ttorneys for creditors are excluded from application of the FDCPA, the plaintiff failed to state a claim. In affirming the District Court, the Eleventh Circuit in an unpublished opinion relied on _Vega v. McKay_, 351 F.3d 1334 (11th Cir. 2003) which holds that a foreclosure complaint which included the FDPCA notice was not an initial communication under the FDPCA; consequently, a communication made by a party in a foreclosure action or its counsel regarding the foreclosure action was not a communication either. A communication between attorneys for creditors in the same action does not implicate a consumer’s privacy interests as the second mortgage holder would necessarily know about the plaintiff’s default through the foreclosure proceedings.
Author
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Solomon has nearly two decades of experience representing financial institutions, real estate investors and privately owned business entities. Solomon concentrates his practice in the areas of banking, consumer financial services, real estate, business law and related litigation and appellate practice.
