FDCPA Exclusion for Litigating Attorneys

01/09/19

On the heels of oral arguments in the latest Supreme Court case concerning application of the Fair Debt Collection Practices Act to lawyers, ABA President Bob Carlson has a comment in Bloomberg Law today {subscription maybe required} explaining succinctly why litigating lawyers should be excluded from the FDCPA. He carefully distinguishes lawyers collecting debts outside the litigation context (pre-filing)--whom the FDCPA might reasonably regulate--but he convincingly argues for exemption for those involved in active litigation (I would hope and presume this applies to both the pre-judgment and post-judgment stages, the latter being the subject of a little book on judgment enforcement I've just written, including a bit about the FDCPA). The courts provide adequate oversight and abuse prevention in this formal collection context, Carlson argues, and the "gotcha" pitfalls for otherwise innocuous behavior in the FDCPA (especially the required "mini-Miranda" and validation notices) are unjustifiable as applied to court-supervised litigating lawyers. We'll see how warm a reception HR 5082 receives in Congress. 

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