The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This case brought under the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., presents questions of responsibility for improper mailing of dunning notices to debtors' employers, what constitute improper threats, the definition of debt collector, and issues relating to personal jurisdiction and venue in the district to which debt collection mail is sent. Subject matter jurisdiction is asserted based upon 28 USC §§ 1331, 1337 and 1692k.
Defendant moves to dismiss for lack of personal jurisdiction and for failure to state a claim, supported by affidavits pursuant to Fed.R.Civ.P. 12(b)(6). I find that the complaint states a claim and that jurisdiction and venue are proper, deny the motion to dismiss, and grant leave to either party to move for summary judgment.
The Fair Debt Collection Practices Act, enacted by Public Law 95-109, 91 Stat. 880 (1977) as amended ("the Act"), protects only "consumers," not businesses as such. The statute defines "consumer" to include any natural person claimed to owe a debt:
The term "consumer" means any natural person obligated or allegedly obligated to pay any debt.
15 USC § 1692a(3). This definition covers business debts if incurred by a sole proprietor. The statute defines "debt collector" as one who regularly collects or attempts to collect debts.
Although creditors engage in unfair collection tactics as do independent debt collectors, the Act in the main does not apply to those who collect their own debts without pretending to utilize an independent collector:
The term "debt collector" means any person who . . . regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another . . .
15 USC § 1692a(6). This does not mean that creditors are free to use unfair tactics. They are subject to the Federal Trade Commission Act's prohibition against unfair or deceptive practices affecting commerce (15 USC § 45) and to its injunctive provision (15 USC § 53[b]), and implementing rules (16 C.F.R. § 444), upheld in American Financial Services Ass'n v. FTC, 247 U.S. App. D.C. 167, 767 F.2d 957 (D.C. Cir. 1985), cert. denied 475 U.S. 1011, 89 L. Ed. 2d 301, 106 S. Ct. 1185 (1986). They are also subject to federal antifraud provisions such as 18 USC §§ 1341 (mail fraud) and 1345 (injunctive relief against fraud), and to state law.
The definition of debt collector formerly excluded attorneys, but Public Law 99-361 eliminated that exception in 1986 by deleting former 15 USC § 691(a)(6)(F).
The Act also prohibits the sending of letters to a debtor's employer, as part of a more general restriction against communications with third parties in connection with the collection of a debt:
Except [in seeking location information] as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector . . . a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, [the consumer's] attorney, a consumer reporting agency . . ., the creditor, the attorney of the creditor, or the attorney of the debt collector. 15 USC § 1962c(b).
The Act further prohibits any "threat to take any action that cannot legally be taken or that is not intended to be taken." 15 USC § 1692e(5).
A descriptive statement concerning the debt must be sent to the debtor within five days of the original communication to the debtor. 15 USC § 1692g. Where the Act is found to be violated with respect to a person, that person may obtain actual damages, such additional damages as the court may allow not exceeding $ 1,000, and reasonable attorney's fees as determined by the court. 15 USC § 1692k(a).
Plaintiff resides in New York. Defendant, a lawyer practicing in Indiana, mailed a letter to plaintiff seeking to collect a debt on behalf of a third party. Defendant also sent a copy of the debt collection letter to plaintiff's employer, postmarked September 28, 1993, and addressed as follows: