Relying on Seventh Circuit precedent a Bankruptcy court in Ohio held that a debt collector did not violate the FDCPA in knowingly attempting to collect a discharged debt. In Gunter v. Kevin O’Brien and Associates, 2:05-ap-02257 (Bkrtcy. S.D.Ohio, June 17, 2008) the debt collectors claimed that it was unaware of the discharge when it commenced collection. In response, the debtor argued that the debt collector failed to check PACER or any other source t determine whether a Bankruptcy was filed so it should be charged with the knowledge that such a search would have revealed. The court determined that a debt collection firm, however, generally does not have a duty to determine whether an individual from whom it is attempting to collect has commenced a bankruptcy case. It would be unreasonable to expect collection firms to do so in every instance. The court noted that It is not difficult to imagine that, of the thousands of individuals to whom the typical debt collector sends letters, many of them-even though not in bankruptcy themselves-will have the same name as one or more persons who have commenced a bankruptcy case. No violation found.
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.
