On April 21, 2021, the Eleventh Circuit Court of Appeals issued a decision in the case of Hunstein vs. Preferred Collection and Management Services. This opinion raises several issues and, in our opinion, could lead to litigation claims against debt collectors and creditors, including Credit Unions.
The original lawsuit was filed under the Fair Debt Collections Practices Act (FDCPA) and the Florida Consumer Collections Practices Act (FCCPA). The claim was brought by Mr. Hunstein, alleging that the debt collector violated the FDCPA and the FCCPA when it conveyed information about his delinquent debt to a third-party mail vendor used by Preferred Collection and Management Services to send out routine collection letters. The district court dismissed the lawsuit, finding that the consumer failed to state a cause of action under the FDCPA. On appeal, the Eleventh Circuit reversed that decision.
The Eleventh Circuit Court’s sole focus is on the FDCPA, which would not apply to Credit Unions collecting their own debt. Its decision does not address the claim under the FCCPA, which would apply to Credit Unions. The statutory language at issue under the FDCPA is Section 1692c(b) that provides “a debt collector may not communicate, in connection with the collection of any debt, with any other person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector[.]” The Eleventh Circuit found that a communication in connection with the collection of any debt with a third-party mail vendor could violate the Act if that communication is in connection with the collection of any debt. Mr. Hunstein’s allegation was that the communication from the debt collector to its mail vendor included the amount of the debt, the entity to which the debt was owed, and the fact that the debt was related to his son’s medical treatment. The Eleventh Circuit ruled that if the communication to the mail provider contained this information, then it was a communication in connection with a debt that violated 1692c(b).
This ruling will have a significant impact on debt collectors (third-party agencies). How they deal with this new risk could significantly change their process and cost structure. In fact, the Eleventh Circuit recognizes that its decision will severally impact third-party debt collectors but emphasized that the problem needs to be addressed by Congress.
It is hard to determine how this will impact Credit Unions or other creditors at this time. The court did not address the FCCPA claim, as that was not addressed at the lower court level, except for the fact that once the FDCPA claim was dismissed (the one involving a federal statute), that eliminated jurisdiction for the federal court to consider the FCCPA claim. Now that the FDCPA claim is back before the lower court, the court will have to consider the FCCPA claim as well.
The FCCPA does not have the same statutory language as the FDCPA. The complaint filed by the consumer, Mr. Hunstein, alleges violation of Section 559.72(5), which provides as follows:
Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.
If a court were to rule that the use of a third-party mail vendor violates Section 559.72(5), the impact on Credit Unions and other creditors could be significant. In the meantime, as this opinion is disseminated among consumer lawyers, I would not be surprised to see similar claims brought against creditors. SVL will continue to monitor the litigation between Mr. Hunstein and Preferred Collection and Management Services as the lower court considers the FCCPA claim. In the meantime, if you wish to discuss this matter and your unique risks, please contact a lawyer at SVL.
