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Peterson v. Portfolio Recovery Associates, L.L.C.

2010 WL 2015260 (U.S. Dist. Ct. D. N.J. 2010) (Unpublished)

FDCPA —If a person pursued by a debt collector never lived at the address to which a purported initial communication had been sent by the collector, then the very first actual contact made with that a person by the debt collector constitutes the “initial communication” and violates the FDCPA’s requirement that notice be given at least five days before an initial communication is made with a debtor.

Under the Fair Debt Collection Practices Act (FDCPA), there is a requirement that “[w]ithin five days of a debt collector’s initial communication with a consumer, the collector must send the consumer a written notice containing [five items,] unless the initial communication already contained them.” The FDCPA does not provide much help in interpreting or applying the phrase “communication with a consumer.” It does define “communication” to mean “the conveying of information regarding a debt directly or indirectly to any person through any medium.” This definition, however, is no indication “as to where exactly a letter must be sent for it to qualify.” Case law has “coalesced around the proposition that ‘while the plain language of the statute does not require the debt collector to ensure actual receipt of the validation notice, the plain language does require the debt collector to send the validation notice to a valid and proper address where the consumer may actually receive it.” Here, the debt collector sent a letter to the address where the named person resided but then began to contact a person with the same name who had never lived at that address. That person never received the letter. Given those circumstances, the United States District Court concluded that the person being pursued had “shown beyond doubt,” that the letter sent to an address where he had never lived was not, in fact, an initial communication with him. That made the subsequent collection efforts into the “initial communications.” Because there here was no evidence at all that the person being pursued had any connection with the home to which the collection letter was initially sent, the Court did not believe that the address used on the notice could “fairly be characterized as ‘a valid and proper address where the consumer may actually receive [the validation notice].’” Since the mailing of the letter was not the initial communication, the subsequent phone calls were the initial communications and the debt collector was held to have violated the FDCPA’s requirement that the required notice be given at least five days before an initial communication with a debtor.

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