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As a general rule, a principal may only be held vicariously liable for the acts of its agent where it had actual control over the conduct. But what if the principal is a debt buyer and its attorneys violate the FDCPA? A recent opinion by the Seventh Circuit holds that debt buyers are strictly liable for the FDCPA violations of their attorneys and other vendors. In Janetos v. Fulton Friedman & Gullace, LLP, a debt buyer hired a law firm to collect on accounts where the debt buyer had already obtained a judgment. The initial demand letters sent out by the law firm did not comply with 15 U.S.C. §1692g(a)(2) in that the letters failed to identify clearly the current creditor or owner of the debt. The consumers filed suit against both the law firm and the debt buyer (current creditor) under the FDCPA and alleged that the debt buyer was vicariously liable for the acts of its lawyers.
The debt buyer contended that it could not be held vicariously liable for the letters the law firm drafted and sent. The court disagreed and in doing so joins the Ninth and Third Circuits in holding that because the debt buyer was itself a debt collector subject to the FDCPA, it is responsible for FDCPA violations committed by others acting on its behalf. Janetos v. Fulton Friedman & Gullace, LLP, C.A. No. 15-1859, 2016 U.S. App. LEXIS 6361, *18 (7TH Cir. Apr. 7, 2016); see also Pollice v. National Tax Funding, L.P., 225 F.3d 379, 404-06 (3d Cir. 2000); Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1516 (9th Cir. 1994). According to the court, “[w]e think it is fair and consistent with the Act to require a debt collector who is independently obliged to comply with the Act to monitor the actions of those it enlists to collect debts on its behalf.” Id. at *19. The opinion is troublesome in that the court expressly rejects any argument requiring a show of control by the debt collector over the specific activity alleged to violate the FDCPA. It, therefore, appears that, at least in the Seventh Circuit, debt buyers will be held strictly liable for the FDCPA actions of their attorneys and other vendors.
Caren Enloe is a partner who concentrates her practice in consumer financial services litigation and compliance, bankruptcy, and commercial litigation with an emphasis on creditor’s rights. She has a deep understanding of the complex compliance environment surrounding the financial services industry and regularly advises financial service companies on licensing and compliance issues involving state and federal consumer protection and finance statutes. Caren is the author of a daily blog titled: Consumer Financial Services Litigation and Compliance where she posts timely and informative updates regarding the CFPB, FTC, and a host of topical litigation issues involving consumer protection law....LEARN MORE