10th Circuit Finds Debt Collector’s Fax to Debtor’s Employer re: Wage Garnishment Not a “Communication” Under FDCPA; Disagrees with 9th Circuit’s Rouse Decision that FDCPA’s ‘bad faith’ reverse-cost provision overrules Rule 54(d)

In Marx v. General Revenue Corporation, the Court of Appeals for the Tenth Circuit affirmed a district court’s ruling after a bench trial that a fax by a debt collector to a debtor’s employer to verify employment for purposes of wage garnishment was not a prohibited third party communication under the FDCPA.  The Court of Appeals explained:

The facsimile in question is not a “communication” under the FDCPA.  A third-party “communication”, to be such, must indicate to the recipient that the message relates to the collection of a debt; this is simply built into the statutory definition of “communication”.  This fax can not be construed as “conveying” information “regarding a debt”.  Nowhere does it expressly reference debt; it speaks only of “verify[ing] employing.”  Nor could it reasonably be construed to imply a debt. 

 The Court of Appeals also rejected the 9th Circuit’s holdling in Rouse:

The exception is Rouse v. Law Offices of Rory Clark, 603 F.3d 699 (9th Cir. 2010), heavily relied upon by Mrs. Marx.  The Ninth Circuit heldthat a “prevailing defendant can not be awarded costs under the FDCPA unless the Plaintiff brought the action in bad faith and for the purpose of harassment”.  Id. at 701.  For reasons explained above, we do not find the holding that Rule 54(d) is superceded by the FDCPA’s section 1692k(a)(3) persuasive.