District Court (Minn.) Holds that FDCPA “Notice of Representation” Requires Notice AND Ascertainability of Attorney; But Also Holds that Debtor Need Not Provide Cease-and-Desist Down the Chain of Assignment from One Debt Collector to the Next

In Taufen v. Messerli & Kramer, P.A., 2014 WL 668019 (D.Minn. 2014), Judge Frank held that an FDCPA plaintiff seeking to prove that a “Notice of Representation” was violated under 15 U.S.C. § 1692c(a)(2) must prove both that a Notice of Representation was given and that the attorney’s name was reasonably ascertainable.

Even if the Court were to conclude that a reasonable juror could find that the February 2, 2012 letter indicated that Plaintiff was represented by an attorney, there is no evidence that the information in the letter would have allowed Defendant to readily ascertain Plaintiff’s attorney’s name and address. While the letter mentions that Plaintiff would “consult with my legal counsel for suit,” Plaintiff never identifies the attorney to who she is referring and, signifi-cantly, requests that all future communications be sent to Plaintiff’s address. (Zwilling Decl. ¶ 6, Ex. 2.) The Court concludes, therefore, that at the time Defendant sent the February 7, 2012 letter, Defendant was under no obligation, as a matter of law, to attempt to identify the unnamed “legal counsel for suit” in Plaintiff’s February 2, 2012 letter. ¶  For the above reasons, Defendant is entitled to summary judgment with respect to Plaintiff’s FDCPA claims under section 1692c(a)(2).

However, Judge Frank held that a written cease-and-desist from a debtor under 15 U.S.C. § 1692c(c) can be violated when the debt is transferred from one debt collector to the next; a debtor need not give cease-and-desists to all debt collectors down the chain of assignment.

Plaintiff alleges that Defendant violated section 1692c(c) by communicating with Plaintiff after Plaintiff indicated that she wished all communication to cease. Defendant argues that this claim fails as a matter of law because Plaintiff never individually ceased communication with Defendant.  ¶  . . . Defendant argues that, even if a cease and desist accompanied Plaintiff’s debt when it was placed with Defendant, it had no legal effect because Defendant must be ceased individually by Plaintiff. In support, Defendant cites to a case out of the Northern District of New York, Micare v. Foster & Garbus, 132 F.Supp.2d 77, 81 (N.D.N.Y.2001). In Micare, the court held that a plaintiff’s section 1692c(c) claim failed where the only alleged notice to cease communication was not sent to the defendant debt collector, but instead was sent to the creditor prior to transferring the debt to the collector. 132 F.Supp.2d at 81. The court reasoned that the plain language of the statute required a written communication to be made directly to the debt collector being ceased. Id.  ¶  While the facts of Micare are similar to the facts here, the case is not controlling and the Court declines to follow it in this case. Instead, the Court concludes that if Plaintiff can establish that she notified Capital One in writing that communications should cease, that her “cease and desist” status was forwarded to Defendant when her Account was transferred for collection, and that Defendant had actual knowledge of that status, then Plaintiff could prevail on her section 1692c(c) claim. The Court agrees with Plaintiff that requiring a debtor, like Plaintiff, to individually send letters to subsequent debt collectors to whom the debtor’s account is transferred after sending written notification to cease communication to a prior debt collector about the same debt, and where the subsequent debt collector has actual knowledge of the cease and desist status, would be too strict of an interpretation of a remedial statute designed to protect consumers.  ¶  With this in mind, the Court concludes that, on the record before it, fact issues remain that preclude summary judgment on Plaintiff’s claim under section 1692c(c). Specifically, viewing the evidence in the light most favorable to Plaintiff, a reasonable juror could conclude that Defendant, being in possession of the Account files with the “cease and desist” code, would have known that Plaintiff had indicated that she wished the debt collector to cease all further communication. Unlike Plaintiff’s claim under section 1692c(a)(2), which required knowledge that Plaintiff was represented, a reasonable juror could conclude, based on the evidence before the Court, that Defendant understood the code as an indication that Plaintiff’s Account was classified as a “cease and desist.” Thus, summary judgment is denied as to Plaintiff’s section 1692c(c) claim.