Collector – August 2019 - 29

information rather than challenging the
language of the validation disclosure, the
consumer's claim was nevertheless based on
the flawed precedent of the Third Circuit
that all disputes must be in writing.

debt collectors must conduct a risk
assessment and consult with their own
attorney to determine the best language
to include in an initial validation notice
in this jurisdiction.

RISK ASSESSMENT &
MITIGATION

ACA IS TAKING ACTION ON THE
INDUSTRY'S BEHALF

Until the issue is resolved by the courts,
what is a debt collector to do? Right now,
there are no perfect solutions. If a debt
collector is sending letters to consumers
located in the Third Circuit, one solution
could be to add "in writing" to the
Section 809(a)(3) portion of the validation
notice (but only to letters within the
Third Circuit). Adding "in writing" to the
first sentence of the validation notice will
not violate the FDCPA within the Third
Circuit so long as the Graziano decision
remains precedent.
However, this may not be a reliable longterm strategy because adding "in writing"
is not without significant risk of a different
nature. Some ACA members may recall the
case Oliva v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, in which the Seventh Circuit
Court of Appeals found a debt collector
liable for following binding precedent
that was later overturned. Similar to the
defendant in Oliva, collectors that decide
to add "in writing" to the Section 803(a)
(3) portion of the validation notice could
be held liable in the event the Third Circuit
later overturns Graziano.
The other option would be to continue
to use the language of the statute.
However, if the collector chooses to use
the text of the FDCPA and refrain from
adding "in writing" to the first sentence
of validation notices sent to consumers in
the Third Circuit, the debt collector may
run the risk of a class-action lawsuit in a
jurisdiction in which at least some district
judges believe that omitting "in writing"
under Section 809(a)(3) is a violation.
Unfortunately, neither option is
without risk. Due to the contradictory
rulings within the Third Circuit,

ACA International believes the best longterm strategy is to appeal these erroneous
rulings to the Third Circuit. ACA believes
the ruling in Graziano is an incorrect
interpretation of the statute that ignores
the fundamental principles of statutory
interpretation and is likely to be overturned
on appeal. Indeed, the inconsistent and
contradictory district court decisions
within the Third Circuit, as well as the
contradictory holdings of other federal
circuit courts on this issue, is strong
evidence that the result in Graziano is
untenable and must be overturned.
For these reasons, ACA is working
tirelessly to try to ensure that court cases
involving this critical issue within the
Third Circuit result in judicial decisions
that are governed by common sense, are
clear and consistent, and do not unfairly
impede legitimate industry business and
activity. To date, ACA has supported
the following "Third Circuit statutory
dispute notice" cases through the Industry
Advancement Program by providing its
members with Industry Advancement
Funds to help defray the costs of litigation:
Cadillo v. Stoneleigh Recovery Associates,
LLC; Poplin v. Chase Receivables, Inc.; and
Riccio v. Sentry Credit, Inc.
Members who wish to learn more about
the case law on this issue can review the
table of recent court decisions on the
opposite page. ACA will continue to provide
information and support for members
dealing with this frustrating issue.

COLLECTOR 08.19

Karen Scheibe Eliason is ACA International's
former vice president and senior counsel.
Andrew Pavlik is ACA International's
compliance analyst.

KEYNOTES

1

The circuit courts are split
on whether the FDCPA
permits consumers to dispute
a debt orally or whether all
disputes must be "in writing."

2

Until the issue is
resolved by the courts,
debt collectors have two
options for their validation
letters, but each presents risk.

3

ACA believes the best
long-term strategy is
to appeal these erroneous
rulings to the Third Circuit.

29


https://www.acainternational.org/industry-advancement-program/seventh-circuit-debt-collector-cannot-escape-fdcpa-liability-by-relying-on-circuit-precedent https://www.acainternational.org/industry-advancement-program/seventh-circuit-debt-collector-cannot-escape-fdcpa-liability-by-relying-on-circuit-precedent

Collector – August 2019

Table of Contents for the Digital Edition of Collector – August 2019

President’s Page
Industry News
Best Practices
FYI
Collection Tips
How a background in making people laugh has helped Roger Weiss, ACA’s new president, educate and engage an industry.
No Good Option
“You’ve got to be a compliance cheerleader for the organization, and that takes a lot of energy.”
Protecting Health Care Data
Calendar
Honor Roll
Education Spotlight
ACA SearchPoint
Ad Index
Membership
Last Word
Collector – August 2019 - Cover1
Collector – August 2019 - Cover2
Collector – August 2019 - 1
Collector – August 2019 - 2
Collector – August 2019 - 3
Collector – August 2019 - 4
Collector – August 2019 - President’s Page
Collector – August 2019 - Industry News
Collector – August 2019 - 7
Collector – August 2019 - 8
Collector – August 2019 - 9
Collector – August 2019 - Best Practices
Collector – August 2019 - 11
Collector – August 2019 - FYI
Collector – August 2019 - 13
Collector – August 2019 - Collection Tips
Collector – August 2019 - 15
Collector – August 2019 - How a background in making people laugh has helped Roger Weiss, ACA’s new president, educate and engage an industry.
Collector – August 2019 - 17
Collector – August 2019 - 18
Collector – August 2019 - 19
Collector – August 2019 - 20
Collector – August 2019 - 21
Collector – August 2019 - 22
Collector – August 2019 - 23
Collector – August 2019 - No Good Option
Collector – August 2019 - 25
Collector – August 2019 - 26
Collector – August 2019 - “You’ve got to be a compliance cheerleader for the organization, and that takes a lot of energy.”
Collector – August 2019 - 28
Collector – August 2019 - 29
Collector – August 2019 - Protecting Health Care Data
Collector – August 2019 - 31
Collector – August 2019 - 32
Collector – August 2019 - 33
Collector – August 2019 - Calendar
Collector – August 2019 - Honor Roll
Collector – August 2019 - Education Spotlight
Collector – August 2019 - 37
Collector – August 2019 - 38
Collector – August 2019 - 39
Collector – August 2019 - 40
Collector – August 2019 - 41
Collector – August 2019 - 42
Collector – August 2019 - 43
Collector – August 2019 - 44
Collector – August 2019 - 45
Collector – August 2019 - 46
Collector – August 2019 - 47
Collector – August 2019 - ACA SearchPoint
Collector – August 2019 - Ad Index
Collector – August 2019 - Membership
Collector – August 2019 - 51
Collector – August 2019 - Last Word
Collector – August 2019 - Cover3
Collector – August 2019 - Cover4
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