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Williams v. Zucker, Goldberg & Ackerman, LLC

2011 WL 843943 (U.S. Dist. Ct. D. N.J. 2011) (Unpublished)

FDCPA — It is not a violation of the Fair Debt Collections Practices Act for a debt collector to communicate with a third party if the collector is merely attempting to ascertain to the debtor’s location, even if the collector may have believed that it had already located the debtor.

A debt collector initiated a foreclosure action on behalf of a bank. The borrower was unmarried when she executed the mortgage, but was married at the time of the foreclosure action. The foreclosure complaint named two defendants, the borrower and her husband but misidentified the husband, naming the borrower’s father instead. The debt collector mailed complaints and summonses to each of the individuals. The borrower’s father opened the complaint and summons intended for the borrower’s husband. He called the debt collector and informed it that his daughter had a different married name, and that he was her father, not her husband. Additionally, he told the collector that his daughter and already negotiated a mortgage repayment plan with the lender. The debt collector inquired as to the daughter’s whereabouts, to which the father informed them that his daughter lived at the mortgaged property. The debt collector then filed an amended complaint using the borrower’s married name, but still prepared the other complaint, intended for the borrower’s husband, in the name of her father. The borrower filed a claim alleging violations of the Fair Debt Collections Practices Act (FDCPA). The debt collector moved to dismiss in lieu of answering.

The borrower claimed that the debt collector violated the FDCPA by sending a summons and complaint to her father’s house; communicating with her father over the phone; questioning him about her own whereabouts; and filing the foreclosure action in the first place, when the bank had allegedly told the debt collector not to.

First, she argued that because the debt collector also mailed the complaint and summons to her current address at the subject property, the debt collector’s motivation for mailing a notice to her father’s address was not for the purpose of locating her, but rather for some other impermissible purpose. The Court noted that federal law permits debt collectors to communicate with a third-party for the purpose of obtaining location information about a debtor. Additionally, the Court found that mailing a notice to the borrower’s former address did not rise to the level of harassment. Lastly, the Court was not convinced that the debt collector intended to deceive the borrower by misstating her marital status in the foreclosure papers and by naming her father as a party.

The borrower next argued that the debt collector’s phone conversation with her father was impermissible under the FDCPA. She argued that because the debt collector was allegedly aware of her current location, it was not permitted to ask any questions of her father during the course of the phone conversation that he initiated. However, the Court determined that such questioning was fully within the FDCPA’s exception allowing third-party communications when a debt collector is merely attempting to ascertain the consumer’s location, regardless of whether the borrower believed that the collector knew her current location. The father initiated the contact, so it did not run afoul of the prohibition against a collector conveying information about the debt. Additionally, the actions here did not constitute harassment as defined by the FDCPA.

Finally, the borrower argued that because the mortgagee had allegedly instructed the debt collector not to pursue the foreclosure, the debt collector violated the FDCPA’s provisions that bar a collector from threatening to take action that cannot legally be taken or not intended to be taken. In dismissing the complaint, the Court found that the notice mistakenly sent to the father did not violate the act because it did not make any verbal threats, but simply addressed the summons and complaint to the borrower’s unknown husband at her last known address.

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