The United States Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a pro se plaintiff’s complaint in the case of Todd v. Collecto, Inc., 2013 WL 5452071. Michael Todd alleged that Collecto had violated the FDCPA by calling him and discussing his mother’s debt with him. Specifically, Mr. Todd first alleged that this violated Section 1692b of the FDCPA. Section 1692b generally prohibits a debt collector from communicating with anyone but the debtor about a debt, except to obtain contact information. (Note: This means a debt collector cannot legally call friends, relatives or co-workers and discuss the debt, and cannot call them at all if the debt collector knows how to contact the debtor.). The Court found that Mr. Todd’s complaint did not state a claim under this section because, under the terms of the section, only the debtor (his mother) could sue to enforce it.
Mr. Todd also alleged that Collecto’s conduct was unfair and unconscionable under Section 1692f. This section generally prohibits a debt collector from engaging in unfair and unconscionable conduct in the course of collecting a debt. The Court ruled that the allegations of the complaint did not state a claim under this section. Important to the Court’s ruling was that there was only one conversation, there was no request for payment and no express or implied threat of repercussions for Mr. Todd or his mother.
The takeaway from this case is that drafting the complaint is very important in an FDCPA lawsuit, just as it is in any case. Reading between the lines, it appears to me that, while no explicit request for payment was made, one of the reasons the Collecto representative engaged in this conversation with Mr. Todd was to get him to pay the debt on his mother’s behalf. An explicit request for payment need not be made for the call to be an attempt to collect a debt. Had Mr. Todd alleged that the phone call to him was an attempt to collect a debt from him, that would make him an alleged debtor under the FDCPA and would provide him with considerably more protections under the Act. If Mr. Todd could have truthfully make this allegation, I believe his claim would have survived the defendant’s motion to dismiss.