Collector - January 2018 - 47
terroristic-like lawsuits against legitimate
collectors who have not violated the statute.
Notably, ACA cited and extensively
quoted in its amicus brief the Derosa v.
CAC Financial Corp decision, which was
issued from another district court also
sitting in the Second Circuit that reached
the same issue just weeks earlier in favor of
another ACA member collection agency.
ACA highlighted the well-reasoned Derosa
decision for the appellate court because
it persuasively articulated the consistent
holdings of other courts around the county,
both within and outside the Second Circuit,
that a debt collector need not make any
additional disclosure if neither interest nor
fees is accruing.
With respect to the case of Evans v.
Portfolio Recovery Associates, LLC., No. No.
17-1773 (7th Cir), the primary issue before
the Seventh Circuit Court of Appeals is
whether the consumer's debt was disputed
within the meaning of 15 U.S.C. Section
In Evans, the federal district court ruled
that the collection agency violated the
FDCPA when after the consumer's attorney
faxed a letter titled "representation letter" to
the agency's general counsel informing the
agency that the consumer was represented,
the consumer was not able to pay the
debt and that the "amount reported is
not accurate," the agency told three credit
reporting agencies about the consumer's
defaulted debt without mentioning the
consumer's alleged dispute.
The lower court was not persuaded by
the agency's argument that the letters at
issue in the case do not qualify as raising
any type of true dispute but, instead, were
a "sham, designed to create liability where
no harm to a consumer is threatened."
Considering the enormous number of
deliberately uninformative and frivolous
generic form letter "disputes" that are
transmitted daily to ACA member agencies
who are credit information providers,
ACA submitted a "friend of the court"
brief to provide assistance and insight to
the Seventh Circuit with respect to the
broad public-policy issues that the case
raises, "which directly and pervasively
affect the credit-and-collection industry:
the meaning of 'disputed debt' in the
Consumer Credit Protection Act, the
due-process implications of expanding that
definition beyond the statutory usage, and
the economic impact of invalid disputes of
ACA convincingly bolstered its arguments
in the Evans amicus brief by including
industry data and empirical evidence it
obtained as a result of the pilot study it
undertook for purposes of its ongoing
advocacy efforts to document the practice
of sending letters disputing consumer debt
that do not present a bona fide dispute, and
to measure the costs and burdens that such
invalid disputes impose.
ACA's efforts to proactively support the
industry, like in the Taylor and Evans cases,
are part of ACA's Industry Advancement
Program and are made possible by funding
through ACA's Industry Advancement
Fund. ACA will continue to provide more
information and updates with respect to
further developments in these cases and when
any decisions are made by the circuit courts.
To read more about the most recent
significant judicial decisions involving
the credit and collection industry, ACA
members can always find concise case
summaries at www.acainternational.org/
Karen Scheibe Eliason is ACA International's