The U.S. Court of Appeals for the Second Circuit Rules that a Collection Letter with a Written Dispute Demand Violates the FDCPA

Adam J Krohn
July 17, 2013

A recent case, Hooks v. Forman, Holt, Eliades & Ravin, LLC, the U.S. Court of Appeals for the Second Circuit ruled that a collection letter violated the Fair Debt Collection Practices Act (“FDCPA”) because it stated that the debtor would only be able to dispute the debt in writing. This ruling vacated the district court’s ruling that dismissed the case for failure to state a claim. The Circuit Court held that under the FDCPA there is no requirement that a written dispute is needed to avoid an assumption that the debt is valid.

The court distinguished different parts of the FDCPA in Section 1692(g). Certain portions of this section require written disputes or requests from the debtor for various rights provided by the FDCPA to apply, while another portion deals with when a debt will be assumed valid. Section 1692(g) requires that a debt collector send a “validation notice” in writing to the consumer within five days of the initial collection attempt. This section also specifies what information is required to be in the notice, including statements that should the debtor dispute the debt in writing or make a written request for the name and address of the original creditor, the debt collector will provide the verification of the debt or the information requested.

The debt collector is also required to cease all efforts with regards to collection until verification or the information that was requested is provided, if it receives a written dispute or information request. It is also required under Section 1692(g) that a validation notice include a statement that the debt collector will assume that the debt is valid unless the debt is disputed by the consumer within 30 days.

In the Second Circuit’s view, “the right to dispute a debt is the most fundamental” of rights in Section 1692(g), and it is “reasonable to ensure that it could be exercised by consumer debtors who may have some difficulty with making a timely written challenge.” However, it is also the court’s view that it makes sense that the FDCPA requires debtors to put a dispute in writing prior to claiming rights under Section 1692(g) such as the requirement that all efforts to collect the debt stop.

While two other Circuit Courts, the Third and the Ninth Circuits had considered this issue before, they had each reached opposite conclusions. The Second Circuit found the Ninth Circuit’s reasoning in their 2005 decision, Camacho v. Bridgeport Financial Inc., which held that Section 1692(g) does not require a written dispute, to be more persuasive than the Third Circuit’s opinion that stated that debts could not be disputed over the phone. This was an issue of first impression in the Second Circuit.

If you believe that you, a loved one, a friend, or an acquaintance has otherwise been subjected to a debt collector who has violated these laws, please contact us today and speak with one of our qualified FDCPA attorneys. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.westopdebtcollectors.com/