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Lawyers Discuss ‘Confusing’ State of FDCPA Guidance in Second Circuit

A pair of attorneys have conducted an analysis of recent decisions within the Court of Appeals for the Second Circuit, as those decisions relate to the Fair Debt Collection Practices Act, and while they conclude that “almost any debt collection letter is susceptible to claims that it violates FDCPA,” the court does have “ample” opportunity to fix the problem.

The decisions has kept debt collectors “knowing with any certainty what information they must convey to consumers, or what information they may convey to consumers,” wrote Paul R. Niehaus and Emily B. Kirsch, from the firm of Kirsch & Niehaus.

In looking at a trio of recent decisions — Avila v. Riexinger & Associates, Carlin v. Davidson Fink, and Taylor v. Financial Recovery Services, the Second Circuit has created an “overly complex” series of matrices that collection agencies need to weave through in order to determine what information to include in a collection letter. The pair write:

So under current Second Circuit law, the amount of detail necessary in a collection letter could depend on: (1) whether the collection letter is stating an amount due as of the date of the letter, or a future payoff amount due; (2) whether fees and interest are actually continuing to accrue and (3) whether a static debt has the potential to begin accruing interest and fees again in the future. In some instances, no additional disclosure appears to be required, in some instances a general notice appears to be required, and in some instances a specific formula appears to be required. And in each instance, a debt collector must be wary of providing too much or contradictory information, lest they be accused of “overshadowing pre-approved language” thereby improperly coercing payment.

To help address the problem, Niehaus and Kirsch point to a number of cases currently before the Second Circuit that provide the opportunity for the court to “clarify once and for all the level of information that should be provided to consumers under both 1692e and 1692g” of the FDCPA.

A thoughtful, realistic and comprehensible interpretation of how to state an “amount due” is badly needed to protect the best interests of consumers, while giving clear guidance to debt collectors who have and will take the Second Circuit at its word and draft collection letters specifically to stay within the law

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