In a matter of first impression, the U.S. Court of Appeals for the Third Circuit has ruled that a debt collector must prove that its communication with a third party falls within the exception for acquiring a debtor’s location information under the Fair Debt Collection Practices Act (“FDCPA”).
In Patricia Evankavitch v. Green Tree Servicing, LLC, No. 14-1114, plaintiff’s mortgage loan went into default in 2011. Plaintiff contacted her mortgage servicer using her daughter’s cell phone. Subsequently, the servicer made a number of calls to the daughter’s cell phone in an attempt to reach the borrower. The borrower told the servicer to cease making calls to that phone.
After failing to reach the borrower, the servicer started calling neighbors of the borrower and one of those neighbors passed along the servicer’s contact information to the borrower. The neighbor also asked the servicer to stop calling. The borrower then filed suit against the servicer, claiming that its communication with her daughter and neighbors violated subsections 1692b-c of the FDCPA.
Under the FDCPA, debt collectors are prohibited from contacting third parties with some exceptions. One such exception is for communication made “for the purpose of acquiring location information about the consumer.”
However, a debt collector cannot “communicate with any such person more than once … unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.”
The district court ruled in limine — and provided instruction to the jury — that when a debt collector uses this exception as an affirmative defense, it must prove the exception. The jury returned a verdict for the borrower and the servicer appealed.
On appeal, the Third Circuit noted that it was the first Circuit to address the issue of “whether the consumer has the burden of disproving this exception as part of its case-in-chief, or whether the debt collector carries the burden of proving the exception as an affirmative defense, and the district courts have taken divergent approaches.”
Finding that both the text of the FDCPA and its legislative history were silent on the burden of proof issue, the Third Circuit considered five factors in affirming the district court’s ruling: (1) whether the defense is framed as an exception to a statute’s general prohibition or an element of a prima facie case; (2) whether the statute’s general structure and scheme indicate where the burden should fall; (3) whether a plaintiff will be unfairly surprised by the assertion of a defense; (4) whether a part is in particular control of information necessary to prove or disprove the defense; and (5) other policy or fairness considerations.”
Relying on these five factors, the Third Circuit ruled that the district court had properly placed the burden of proof on the defendant, and affirmed.
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