debt collector. Far from precluding any imputation of knowledge, the FTC
Commentary, merely states that "the creditor's knowledge that the
consumer has an attorney is not antomatically imputed to the debt
The existing case law is instructive. In Hubbard, the debtor failed to
establish that his attorney, who had filed debtor's bankruptcy petition,
was retained by debtor with respect with the specified debt of the
consumer prior to the debt collector's communications to the debtor.
Likewise, in both Filsinger v. Upton, Cohen, & Slamowitz, 2000 WL 198223
(N.D.N.Y. 2000), and Countryman v. Solomon and Solomon, 2000 WL 156837
(N.D.N.Y. 2000), the debtor's letter notifying the creditor that it had
retained counsel was sent after the creditor had referred the consumer s
account to its debt collector for collection: there was no knowledge to
impute to the defendants in those cases.
In the case sub judice, Plaintiff notified the Defendant's client that
she had retained legal counsel with respect to the debt in issue. The
creditor-client then retained defendant-debt collector forwarding the
entire file with the striking exception of the Plaintiff's letter
disclosing retention of counsel. The creditor thus had actual notice of
Plaintiff's legal representation but failed to disclose that fact to its
debt collector. Permitting creditors to engage in such a limited
disclosure would utterly eviscerate the protections afforded debtors by
Contrary to Defendant's assertion, the statute does not require that
the debt collector have "actual knowledge" of plaintiff's legal
representation. Knowledge can be imputed to the debt collector when the
creditor has such knowledge and fails to convey it to its agent, the debt
collector, at the time it seeks collection. Moreover, when accepting the
file, the debt collector can readily ascertain the attorney's name and
address from the creditor.
The statute itself specifically states that "if the debt collectors
knows that the consumer is represented by an attorney with respect to
such debt and has knowledge, or can readily ascertain, such attorney's
name and address", 15 U.S.C. § 1692 (a)(2), then the debt collector
cannot communicate with the consumer. A creditor has a duty when turning
over a file to his debt collector to convey all of the material flirts
regarding the claim. The law mandates that the debtor not be contacted
when he has legal counsel. A creditor who has actual knowledge of such
fact cannot retain a debt collector and withhold such information to
contravene the FDCPA's intent.
Plaintiff has therefore established that there is a claim under
1692c(a)(2) for which relief could be granted, and the Court must deny
Defendant's motion to dismiss.
B. Attorney's Fees and Sanctions
Defendant argues that it should be granted fees, costs and sanctions
pursuant to § 1692(k) of the FDCPA because Plaintiff's lawsuit was
brought in bad faith and instituted only to harass it. Because there is
no evidence to support this allegation, the Court denies Defendant's
request for same.
Accordingly, it is hereby
ORDERED that Defendant's motion to dismiss is DENIED; and it is
FURTHER ORDERED that Defendant's request for costs, fees, and sanctions
is DENIED; and it is
FURTHER ORDERED that the Clerk of the Court serve a copy of this order
on all parties by regular mail.
IT IS SO ORDERED.
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