FTC Informal Staff Opinion: LaScuola (05-17-94)

[David A. Szwak]

http://www.ftc.gov/os/statutes/fdcpa/le ... scuola.htm

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

Division of Credit Practices
Bureau of Consumer Protection


May 17, 1994

John C. LaScuola
Wright, Constable & Skeen
250 W. Pratt Street, 13th Floor
Baltimore, MD 21201-2467

Dear Mr. LaScuola:

This is in reply to your letter of April 20, 1994 concerning the propriety of court-ordered service of process on "a person of suitable age and discretion at the place of business, dwelling house or usual place of abode . . ." of a consumer, under the Fair Debt Collection Practices Act. You ask whether such service would constitute an impermissible third party communication in violation of Section 805(b).

We answer in the negative. Ordinarily, such service might well be considered an impermissible third party communication under the Act. However, based on the legislative history of the Act (see enclosed Staff Commentary), the Commission staff has interpreted it to cover only "communications" undertaken as part of the traditional debt collection process (e.g., dunning letters) and not notices sent to a consumer in accordance with a specific statutory requirement as a condition precedent to the exercise of a legal right. Additionally, Congressman Annunzio, a sponsor of the Act, further pinpointed congressional intent by stating that "only collection activities, not legal activities, are covered by the Act." The Act does not apply to attorneys "when they are performing tasks of a legal nature."(1)

Since effective service of process is required by Maryland law as a condition precedent to proceeding with a lawsuit, we do not believe that it is a "communication" undertaken as part of the traditional debt collection process. It is also in the nature of a "legal activity" which, as previously stated, we believe is exempt from the Act. This is true particularly if the service is ordered by a court. Therefore, since service of process is not covered by the Act, serving a third party in the circumstances you describe would not violate Section 805(b) even if the debt is disclosed.

I trust that this answers your question.

Sincerely,

John F. LeFevre


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1. 132 Cong. Rec. H141 (daily ed. October 14, 1986).