Document Type
Research Memorandum
Publication Date
2018
Abstract
(Excerpt)
The Fair Debt Collection Practices Act (the “FDCPA”) was enacted in 1977 to stop debt collectors from engaging in unfair and deceptive practices when collecting consumer debts. The FDCPA was enacted as a response to an abundance of evidence of the use of abusive and deceptive practices by many debt collectors. Collection abuse took many different methods such as threats of violence, telephone calls at unreasonable hours, impersonation, misrepresentation of debts, and collection of information under false pretenses. These unfair practices contributed to household bankruptcies, marital instability, loss of jobs, and invasions of individual privacy. The FDCPA imposes three requirements on debt collectors.
First, debt collectors must identify themselves as a debt collector when speaking to a debtor. Second, debt collectors must advise the debtor of their right to verify and dispute the debt. Lastly, debt collectors must refrain from harassment, false representations, and third-party communications.
It is undisputed that a third-party debt collection agent would generally qualify as a debt collector under section1692a. Lenders that attempt to collect loans they originated, however, would generally not be a debt collector under the FDCPA. The Supreme Court in Henson v. Santander Consumer USA Inc. addressed an area in dispute -- how to classify an individual or entity that regularly purchases debts originated by someone else and then seeks to collect those debts for its own account. The Supreme Court rendered a unanimous decision, the first written by Justice Neil Gorsuch, which held an individual or an entity that regularly purchases debt originated by someone else and then seeks to collect that debt for its own account is not a debt collector under the FDCPA.
This memorandum discusses how to determine if an individual or entity qualifies as a debt collector under the FDCPA. Part I analyzes the Circuit split on the issue, which led to the Supreme Court granting certiorari. Part II addresses how the Supreme Court ultimately resolved the split and how the Court reached its decision of who qualifies as a debt collector in Henson v. Santander Consumer USA Inc.