H/T Lexology

No. 14-14200

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Keith Davidson, Plaintiff-Appellant,

v.

Capital One Bank (USA), N.A., Defendant-Appellee,

On Appeal from the United States District Court For the Northern District of Georgia

No. 1:13-cv-2307

Hon. William S. Duffy, Jr.

 

Amicus Brief of the Federal Trade Commission
Supporting Rehearing En Banc
______________________________________________
JONATHAN E. NUECHTERLEIN
General Counsel
JOEL MARCUS
Director of Litigation
THEODORE (JACK) METZLER
Attorney
Federal Trade Commission
600 Pennsylvania Ave. N.W.
Washington, D.C. 20580
(202) 326-3502
(202) 326-2477 (fax)

STATEMENT OF ISSUE MERITING EN BANC CONSIDERATION
Whether the panel correctly held, in conflict with every other court of appeals
that has considered the issue, that a person who regularly acquires debts that are in
default and attempts to collect on them does not qualify as a “debt collector” within
the meaning of the Fair Debt Collection Practices Act.

[…]

STATEMENT OF THE CASE
This case concerns who qualifies as a “debt collector” subject to FDCPA
requirements vital to protecting consumers from abuse. If a person collecting a debt
is not a “debt collector,” he is not subject to the statute. The panel held that a company
that buys debts that are already in default is not a debt collector. That decision
squarely conflicts with (and does not acknowledge) the decisions of four other courts
of appeals—the Third, Fifth, Sixth, and Seventh Circuits—that have directly addressed
the same question. No court of appeals before now has reached the panel’s
conclusion.

The panel misinterpreted the statute, resulting in a construction of the FDCPA
that is both under- and overinclusive. It created an irrational loophole in the FDCPA
that enables unscrupulous debt collectors to avoid its requirements. And it removed
an important exception to the statute, which ironically extends the FDCPA’s strictures
to companies that Congress did not intend the statute to cover.