Collector - March 2021 - 24

in its Interpretation Staff Commentary
on the FDCPA, 53 FR 50097-02. In that
document, the FTC stated " [a] debt
collector may use a name that does not
misrepresent his identity or deceive the
consumer. Thus, a collector may use its full
business name, the name under which it
usually transacts business or a commonly
used acronym. When the collector uses
multiple names in its various affairs, it does
not violate this subsection if it consistently
uses the same name when dealing with a
particular consumer. "

uses that name (if those states require debt
collectors to be licensed).
But collection agencies with business
names that reveal the nature of their business
have for years used trade names on media
that may be seen or heard by third parties,
e.g., on envelopes, caller ID displays and in
voicemails.
With that in mind, the CFPB stated
in its section-by-section analysis to the
amendments to Regulation F that for
purposes of leaving a limited content
message, " the Bureau expects that many debt

LEARN MORE
For more information about state requirements for trade names,
ACA members can review ACA SearchPoint document #2018,
Use of Aliases, at www.acainternational.org/searchpoint.

Based on this FTC guidance, it would
seem that a debt collector can satisfy the
true name requirement simply by not lying.
As long as a debt collector regularly uses
a particular name, that name will satisfy
the true name requirement. The core
inquiry here appears to be whether the
name misleads the consumer as to the debt
collector's identity. Note that the standard
here is " false, deceptive, or misleading, " not
" confusing, " as so many plaintiffs' attorneys
would like to interpret the statute.
The FTC's staff commentary does not
specifically address whether a trade name
must be registered with the state or states
in which the debt collector operates. Nor
does it address whether the trade name-
registered or not-needs to appear on a
debt collector's license in the states where it

24

collectors will be able to disclose a business
name (e.g., a doing business as (d/b/a) name)
without revealing that they are in the debt
collection business. "
Remember, the final rule does not address
whether a trade name needs to be registered
in order to comply with the requirements for
limited content messages or other laws.

CASE LAW
Fortunately, although federal statutes and
regulations do not address whether a debt
collector's trade name needs to be registered
for the debt collector to use that name in
communications with consumers, federal
case law provides some guidance.
Sheriff v. Gillie - In Sheriff v. Gillie, the
consumers alleged that two attorneys hired
by the Ohio attorney general to collect

debts owed to the state of Ohio had used
the Ohio attorney general's letterhead in
violation of the true name requirement. By
contract, the attorneys were required to use
the Ohio attorney general's letterhead when
attempting to collect, and the signature block
of the letters included the attorneys' names
and addresses and the designation " special "
or " outside " counsel to the state attorney
general. In addition, the letters identified the
senders as debt collectors seeking payment
for debts owed to the state.
The district court entered summary
judgment for the attorneys, finding that
they were protected by the FDCPA's state
officer exemption. On appeal, the 6th Circuit
held that the attorneys were independent
contractors, not state officers, and remanded
the case for a jury determination about
whether the attorney's use of the Ohio attorney
general's letterhead would mislead the least
sophisticated consumer into believing that
the attorney general's office was collecting the
debt. Before the district court reviewed the case
again, however, the Supreme Court granted
certiorari and took up the case.
In its review, the Supreme Court focused
on the true name requirement. The court
held that regardless of whether the two
attorneys qualified for the state officer
exemption, their use of the attorney general's
letterhead did not violate the FDCPA's true
name requirement. The late Justice Ruth
Bader Ginsburg, writing for a unanimous
court, agreed with Judge Jeffrey Sutton's
dissenting opinion in the 6th Circuit:
" Although the FDCPA does not say what a
true name is, its import is straight forward:
A debt collector may not lie about his
institutional affiliation. "
While Sheriff did not directly address
the use of a debt collector's use of a trade
name, the decision's application is clear for
those wishing to do so: Where, as in Sheriff,
a debt collector's communications with a
consumer make no attempt to conceal the
debt collector's function and do not attempt
to conceal the debt collector's identity or
" lie " about its " institutional affiliation, " its
use of a trade name will satisfy the true name
requirement.

ACAINTERNATIONAL.ORG


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Collector - March 2021

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