No FDCPA Violation Where Non-Attorney Representative Called Consumer On Behalf of Forster & Garbus

In a recent case in the US DIstrict Court for the Eastern District in New York, the plaintiff brought a cause of action against Forster & Garbus, alleging that its practice of having a non-attorney contact consumers from an independent call center located in another country, and representing that the caller is a member of Forster & Garbus LLP, was deceptive and misleading under the FDCPA[1]. The plaintiff alleged that this practice misrepresented to the consumer that the caller is a member of the firm and is under the direct supervision of an attorney when he is not. The court found that in the subject phone call, the caller made no misrepresentations regarding his identity or the fact that he was not an attorney, and therefore, it was not reasonable for plaintiff to believe otherwise. The caller identified himself as "Mr. Bryant, calling on behalf of Forster & Garbus," regarding the allegedly delinquent account. "Mr. Bryant" went on to indicate that there was a good offer available to settle the account, but at no time did he suggest he was an attorney.

The FDCPA prohibits the use of any "false, deceptive, or misleading representation or means in connection with the collection of any debt." (See 15 USC § 1692e.) In order to determine whether the FDCPA has been violated, a court must view the conduct in question objectively, from the perspective of the "least sophisticated consumer." This standard protects the naïve and credulous consumers, as well as the shrewd.

Ultimately, the court found that while Bryant stated he was calling "on behalf of Forster & Garbus," he did not state or imply that he was himself an attorney, and the plaintiff offered no support for the proposition that the FDCPA prohibits a non-attorney from contacting debtors on an attorney's behalf. In fact, non-attorney collectors primarily make initial phone calls from collection agencies or law firms. Further, Bryant's mention of a settlement also did not imply that he was an attorney. Because there was no reasonable basis for a consumer to conclude from the mention of the possibility of settlement that Bryant was an attorney representing the creditor, the phone call was held not to be deceptive or misleading, and the plaintiff's complaint was dismissed.

The court also found that order for the plaintiff to prevail in this case, it would likely have had to show that Bryant somehow implied that he was an attorney, or that he had the same authority to settle or otherwise negotiate as any attorney would.