The U.S. Court of Appeals for the Fourth Circuit just decided Sayyed v Wolpoff and Abramson. Sayyed was a consumer that was delinquent on his discover card. Wolpoff is a law firm that sued for the balance due plus attorneys fees. In pursing its client’s case, Wolpoff served interrogatories that did not state “This is a communication from a debt collector.” Moreover, Wolpoff filed a Motion for Summary Disposition. Sayyed countersued for violation of the FDCPA. Sayyed alleged that the interrogatories failed to state that they were a communication from a debt collector, in violation of 15 U.S.C. § 1692e(11). He also alleged that the interrogatories violated
§ 1692e(10)’s prohibition against false representations and § 1692f’s prohibition against unfair or unconscionable collection attempts by making three false statements: (1) that the trial date for the Maryland case was June 11, 2004; (2) that Sayyed had to state his grounds of refusal to answer the interrogatories under oath; and (3) that the state court could enter a default judgment against Sayyed if he did not mail answers to W&A within thirty days after the date of service. W&A argues that it cannot be subject to claims under the FDCPA because an absolute common law immunity attaches to “any statements made during the course of judicial proceedings.” In W&A’s view, the allegedly false statements in W&A’s interrogatories and
summary judgment motion thus cannot constitute FDCPA violations. The court held that the FDCPA trumps such common law immunity. Hence, even in litigation and in its pleadings, an attorney’s statements are governed by the FDCPA.
Wolpoff argued that the pleadings that it had sent were not transmitted to the debtor, but rather the debtor’s attorney and thus, even if FDCPA applies to pleadings, the communication was not sent to the consumer. The court would have no part of that. The court noted that FDCPA defines “communication” broadly. Thus a communication to debtor’s counsel is the same as a communication to the debtor.
Wolpoff did advance one very interesting argument that I had never seen before. It contended that the FDCPA cannot apply to the litigation process because the entire purpose of litigtion is to arrive at the truth. I found this argument appealing. W & A was actually telling the court that if it was going to be bound by the strictures of the FDCPA in advocating for its client, then the FDCPA will have a chilling effect upon its advocacy. This is really quite unthinkable, especially in light of the immunity that litigants enjoy in their pleadings. The court found it interesting as well, but alas, it was not enough to save W & A at the end of the day. The court found that inasmuch as Congress specifically and narrowly exempted formal pleadings from the notice requirement under FDCPA, that the rest of the statute must apply to the rest of the litigation process.
Wolpoff also contended that it relied upon its client’s affidavit in support of its Motion for Summary Judgment. While the District Court bought this argument and dismissed Sayyed’s case, the court of appeals reversed this decision. The court of appeals held that the district court should not have dismissed this claim out of hand, but rather it needed to make a finding of fact (which is impermissible on a Motion for Summary Disposition) as to whether Wolpoff is entitled to use the bona fide error exception of the FDCPA. This would probably necessitate a trial.
In my opinion, this is a scary case, but it is well reasoned and properly decided.

Lessons to be learned by Debt Collection Attorneys:
1. Although you do not have put the phrase “This is a communication from a debt collector” on pleadings, the FDCPA applies in all other respects to the litigation process including your pleadings. If you sue for an amount that is not allowed by contract or law, you bear the consequences.
2. Thus a communication to debtor’s counsel is the same as a communication to the debtor.
3. Do NOT rely upon the bona fide error exception to the FDCPA to get you out of an FDCPA lawsuit quickly. Whether you are entitled to use this defense is a question of fact. Questions of fact are usually resolved after a long and expensive trial.
P.S. Special thanks to Attorney Remy Luria for her help in editing this post.