Debt Collectors beware: Don’t say “could” if you do not mean it.
The 3rd U.S. Court of Appeals recently ruled in Brown v. Card Service Center, No. 4160, that a debt collector who claimed in a collection letter that the debt collector “could” file a lawsuit or refer the matter to a lawyer will violate the Fair Debt Collections Practices Act (“FDCPA”), if the debt collector has no intention to do so or if it can be shown that the debt collector rarely does either.
The appellate court found that making claims without intending to take such action were false and misleading statements under the FDCPA. Section 1692e of the FDCPA specifically precludes a debt collector from using any false or deceptive means in the collection of a debt. As such, the lesson here for debt collectors and lawyers alike is, do not claim in a collection letter that you will, may or could file a lawsuit if you do not ever sue or have no intention to do so. Those failing to heed this advice may see themselves in Court defending a FDCPA claim by the debtor for the debtor’s actual damages plus attorney’s fees as provided for in the Act.
