Judge Grants Motion for Defendant in FDCPA Case Over Attorney Reference in Letter

Does mentioning in a collection letter that the account in question might be referred to an attorney violate the Fair Debt Collection Practices Act? A District Court judge in Pennsylvania has ruled that it does not, granting a defendant’s motion for judgment on the pleadings after it was sued by a plaintiff for mentioning that potential outcome in a letter.

A copy of the ruling in the case of Lezark v. I.C. System can be accessed by clicking here.

The plaintiff received a collection letter from the defendant. It was the second letter that the defendant had sent to the plaintiff. The second letter included the following statement: If you fail to contact us to discuss payment of this account, our client has authorized us to pursue additional remedies to recover the balance due, including referring the account to an attorney.

The plaintiff filed suit, alleging the letter violated Sections 1692e and 1692f of the FDCPA because it allegedly threatened legal action that the defendant did not plan to take and because it allegedly constituted an unfair or unconscionable means of attempting to collect on a debt.

But the defendant’s agreement with the original creditor allowed for the account to be placed with a non-litigation attorney referral vendor, which was authorized to send letters and make phone calls. The vendor was not allowed to initiate legal action, but if the debt was not paid during the time the account was with the vendor, it was then returned to the defendant, and analyzed to determine if legal action was appropriate. If the decision to litigate was approved by the creditor, the account was then referred to an attorney for review. The attorney first sends a demand letter, then initiates legal action, if appropriate.

The plaintiff argued that indicating the account may be referred to an attorney is an indicator that legal action was imminent. But that is not what the statement says, ruled Judge Christy Criswell Wiegand of the District Court for the Western District of Pennsylvania. “…it is clear that it was sent by a debt collector, not a law firm; it creates no false sense of urgency; it does not threaten litigation; and it does not suggest or imply that a lawyer has, at the time the letter was sent, meaningfully reviewed the debtor’s account and/or arrived at any considered judgment as to whether to proceed with legal action,” Judge Wiegand wrote.

Even a least sophisticated consumer would be aware that if a debt is not paid, that an attorney may get involved and a lawsuit may be filed, Judge Wiegand ruled. The statement in the letter “truthfully says to the least sophisticated debtor, ‘if you don’t pay, you may be hearing from a lawyer,’ ” Judge Wiegand wrote.

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