FDCPA’s “competent lawyer” standard does not apply when the debtor is an attorney

In Woerthwein v. Midland Credit Mgmt., Inc., No. 1:16-CV-4058 (N.D. Ill. Oct. 24, 2016) an Illinois district court held that the FDCPA’s “competent lawyer” standard does not apply when the debtor is an attorney.

Plaintiff, an attorney, brought an FDCPA suit over two dunning letters related to unpaid credit card debt. Importantly, the first letter did not disclose that the debt was time-barred. Four months later the debt collector sent a nearly identical letter, but this one stated that “Because of the age of your debt, we will not sue you for it. If you do not pay the debt, we may continue to report it to the credit reporting agencies as unpaid.”

Plaintiff argued that the letters misrepresented Plaintiff’s debt by not disclosing that the debt was time-barred and that the second letter did not inform Plaintiff that he could not be sued for the time-barred debt or the effect of making a payment on the account. The letters were misleading because any repayment towards the alleged debt would expose him to potential liability if he began making payments.

The debt collector moved to dismiss. Claiming that communications to a consumer’s lawyer are not actionable unless they would be likely to deceive a “competent lawyer”, the debt collector argued that Plaintiff was not deceived by the letters because Plaintiff was an attorney well versed in FDCPA law.

The court denied the motion reasoning that if the letters had been sent to Plaintiff’s attorney, then the “competent lawyer” standard would apply. But they were sent to Plaintiff qua as a consumer, meaning the lower, unsophisticated consumer standard applied. And while it is true that Plaintiff was also an attorney, the Seventh Circuit made it clear that the competent attorney standard applies to the consumer’s attorney and not to the consumers themselves. Furthermore, it is irrelevant under the objective unsophisticated consumer standard whether the Plaintiff was actually misled. The test is whether an unsophisticated consumer would be misled. Whether the letters would confuse an unsophisticated consumer was a question of fact.

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