Preferred Files Brief With Eleventh Circuit in Advance of En Banc Hearing

Congress made a mistake when it drafted Section 1692c(b) of the Fair Debt Collection Practices Act, which prohibits communicating information about a debt with third parties because the way the statute is written, “there would be no corporate debt collectors because debt collectors would violate the FDCPA ever single time they communicated about a debt with any employee, independent contractor, or other agent — i.e., the very people a corporation needs to do anything,” argues the defendant-appellee in its brief to the Eleventh Circuit Court of Appeals in advance of next month’s hearing in Hunstein v. Preferred Collection & Management Services.

A copy of the 87-page brief, in which the defendant-appellee lays out its argument that the plaintiff-appellant lacks standing to sue because he did not suffer a concrete injury, can be accessed by clicking here.

Along with the brief that was filed yesterday, a number of interested parties — including RMA International, the Chamber of Commerce of the United States, Mortgage Bankers Association, American Bankers Association, American Financial Services Association, Consumer Bankers Association, Credit Union National Association, Housing Policy Council, along with 19 state creditors bar associations — also filed motions to be able to submit amicus briefs in support of the defendant.

This case has upended the accounts receivable management industry since a three-judge panel from the Eleventh Circuit issued its initial ruling last April that the defendant’s use of a mail house to print and send a collection letter constituted a communication under the FDCPA. Thousands of lawsuits making similar allegations have been filed nationwide and the entire industry is waiting to see what happens when all of the judges on the Eleventh Circuit sit for the en banc hearing.

Using a letter vendor was not the kind of abuse that Congress was seeking to eliminate when it drafted and enacted the FDCPA, the defendant-appellee argues in its brief. “In brief, Congress legislates against background agency-law principles,” Preferred writes. “A debt collector’s agent, like a letter vendor, is not ‘any person’ other than the debt collector, because the agent acts on behalf of, and therefore as, the debt collector. Concluding otherwise would raise grave First Amendment concerns attending a statute that regulates speech based on its content.”

Interestingly enough, while the Eleventh Circuit has focused its attention on whether the plaintiff-appellant had standing to sue, the defendant-appellee’s brief also makes the argument that the Hunstein’s claims are meritless and that using a third-party mail vendor should not be considered a violation of the FDCPA.

“Hunstein complains that Preferred should not have used a letter vendor to contact him,” the defendant writes. “But neither common sense nor standing doctrine supports his claim that he has suffered any harm. Hunstein’s alleged injury is unlike any harm actionable historically or at common law. And the FDCPA itself forecloses his assertion of concrete harm. So as TransUnion put it, ‘[n]o concrete harm, no standing.’ “

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