District Court (N.J.) Answers the Metaphysical Question under the FDCPA of What Happens When a Notice of Representation Letter Falls at the Debt Collector’s Business but Nobody Hears It. . .

The sole contention between the parties, and the only question for us to resolve with this count, is whether Defendant had the requisite statutory “knowledge” of the representation when it called Plaintiff.  Plaintiff argues that knowledge can be imputed upon Defendant through the rules of agency based upon the knowledge of its employees who saw that a letter was received from an attorney. (Dkt. 34-2 at 8–9; dkt. 36 at 8–9; dkt. 41 at 6.) Defendant, by contrast, argues that imputing knowledge is insufficient to meet the statutory burden because the statute requires that a debt collector actually knew of the representation, and that Plaintiff has failed to demonstrate Defendant’s actual knowledge. (Dkt. 33-1 at 10–11; dkt. 39 at 5–7.)  We agree with Defendant that the statute, as a matter of law, requires the debt collector to have actual knowledge of an individual’s legal representation prior to making a communication. We have previously applied § 1692c(a)(2) as requiring actual knowledge by the debt collector. See, e.g., Maldonado v. Lyons, Doughty, & Veldhuis, P.C., No. 13-1825, 2014 WL 1297612, at *3 (D.N.J. Mar. 31, 2014); Ortiz v. Malcolm S. Gerald & Assocs., Inc., No. 11-05959, 2012 WL 1831566, at *3 (D.N.J. May 17, 2012); Vega v. United Recovery Sys., L.P., No. 11-5995, 2012 WL 458468, at *3 (D.N.J. Feb. 9, 2012). Other courts have taken the same approach. See, e.g., Schmitt v. FMA Alliance, 398 F.3d 995, 998 (8th Cir. 2005); Jones v. Weiss, Neuren & Neuren, 95 F. Supp. 2d 105, 108–09 (N.D.N.Y. 2000).  The record before us contains no indication that Defendant had actual knowledge that Plaintiff was represented by counsel when it made the one call in quetion. The evidence demonstrates that a letter was received by Defendant and picked up from a P.O. Box on September 11, 2014 at 9:58 a.m. (Dkt. 34-1 at 2–3; dkt. 34-8 at 1; dkt. 35 at 1; dkt. 39-1 at 3.) However, Plaintiff has not put forth any evidence that his counsel’s letter to Defendant was actually read by any employee prior to Defendant’s communication to him on September 11, 2014 at 10:10 a.m. The record demonstrates that the letter was reviewed and processed by Defendant on September 14, 2014 at 5:07 p.m. (Dkt. 35 at 10; dkt. 36-1 at 2.)  Plaintiff’s arguments regarding what the employee receiving the mail should have done, or could have done, to read the letter and discover its contents are unavailing. The statute mandates that Plaintiff demonstrate actual knowledge of his legal representation, not just mere receipt of a letter from counsel. Simply receiving a letter from an attorney does not satisfy the higher burden of actual knowledge required by § 1692c(a)(2). Compare 15 U.S.C. § 1692c(a)(2) (violation occurs when communication is made “if the debt collector knows the consumer is represented” (emphasis added)), with 15 U.S.C. § 1692c(c)(3) (violation occurs when debt collector makes communication after the consumer provides notice, and “notification shall be complete upon receipt” (emphasis added)).  Because there is no genuine dispute of material fact that Plaintiff has failed to meet his burden of proving Defendant’s actual knowledge, and thus a violation under 15 U.S.C. § 1692c(a)(2), we will enter judgment in favor of Defendant and deny Plaintiff’s motion for summary judgment.