District Court (Nev.) Says Debt Collector Who Knew Debtor Was Represented By Counsel Must Communicate with Counsel, Even Before Counsel Formally Appears in the Action

In Shafer v. Moore Law Grp., No. 3:20-cv-00525-MMD-CLB, 2021 U.S. Dist. LEXIS 174185, at *8 (D. Nev. Sep. 14, 2021), Judge Du allowed an FDCPA case to press forward against a debt collector who served a pleading directly on a represented party in an existing lawsuit because the party’s lawyer had not formally entered an appearance.

Plaintiff alleges that, despite knowing she was represented by counsel in the Collections Case, Defendant continued to attempt to communicate with her directly in its efforts to recover the debt. (ECF No. 1 at 4.) Defendant notably does not deny that it knew Plaintiff was represented by an attorney, but instead argues that it was justified in communicating with Plaintiff because it had “the express permission of a court of competent jurisdiction.” (ECF No. 8 at 5.)  Defendant’s support for this argument is inapposite. Relying on a Seventh Circuit case interpreting Illinois law and the local rules of the Third Judicial District Court of the State of Nevada, Defendant attempts to craft a rule in which it is permitted to communicate with Plaintiff until her attorney makes an appearance in the court where she is being sued. (Id.) Defendant argues that the Third Judicial District’s Local Rule 7(A) “requires that the moving party serve all parties with a memorandum setting forth the points and authorities relied upon in support of the motion.” (Id.) It then extrapolates from the holding in Holcomb v. Freedman Anselmo Lindberg, LLC, 900 F.3d 990,

The Court denied the Motion to Dismiss.

. . . even under Holcomb, a represented party must be served through their attorney. Given Congress’ protective intent when enacting the FDCPA, the Court will not extend the reasoning in Holcomb to this situation, where no local rule expressly required serving Plaintiff directly.  Finally, Defendant’s argument that Plaintiff’s counsel should have simply filed a notice of appearance does not make sense as a matter of policy or logic. An attorney appearance is not required to trigger the protections of § 1692c(a)(2). Indeed, courts have found that even “more informal” communications have supported findings of violations of § 1692c(a)(2). See Washington v. Portfolio Recovery Assocs., LLC, 211 F. Supp. 3d 1041, 1055 (N.D. Ill. 2016) (collecting cases). The FDCPA’s protections are not limited to litigation, and indeed cover persons who are or are not represented by attorneys. Moreover, at the time of the communications in question, the Collections Case had been dismissed and Defendant was seeking to reopen litigation. There is no fathomable reason that [*11] Plaintiff’s attorney would have entered a notice of appearance prior to the Ex Parte Motion to Vacate Dismissal.