Mass Mailings on Attorney Letterhead

[David A. Szwak]

Such mass mailings on an attorney’s letterhead violate 15 U.S.C. 1692e(3). In Nielsen v. Dickerson, 2002 U.S. App. LEXIS 21098 (7th Cir. 2002), the Seventh Circuit held that where the attorney did not make the decision to send the letter to the debtor, was not professionally involved with the debtor's file, did not exercise professional judgment, used a form letter, played only a ministerial role in handling responses, was paid $2.45 per letter, and never took legal action, his conduct was no more than a deceptive "veneer of compliance" with the FDCPA in violation of 1692e(3) and (10). Also, see: Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2nd Cir. 2003) (reversing and remanding dismissal of 1692e(3) claim). Other courts have found that a debt collector's form letter which is signed by an independent attorney who has no knowledge of and has not conferred with a debt collector concerning a particular debt is an unfair collection practice. Martinez v. Albuquerque Collection Services, 867 F.Supp. 1495, 1500-01 (U.S.D.C. N.M. 1994); Masuda v. Thomas Richards & Co., 759 F.Supp. 1456, 1461-2 (C.D.Cal. 1991) ("the letter falsely suggests to the least sophisticated debtor that an attorney has been retained to collect his or her particular debt. Thus, the letter implies to the recipient that TRC considers the debt to be more serious than TRC, in fact, considers it to be. . . . The representation that independent outside counsel has been hired may unjustifiably frighten the unsophisticated debtor into paying a debt that he or she does not owe. The FDCPA must be construed to proscribe this means of collection"). Accord, Russey v. Rankin, 836 F.Supp 1103 (U.S.D.C. N.M. 1995) (attorney “violated the FDCPA when he authorized the sending of debt collection letters bearing his name and a facsimile of his signature without first reviewing the collection letters or the files of the persons to whom the letters were sent.â€

[David A. Szwak]

The Second Circuit has held that disclaimer language in the attorney's letter that "at this time, no attorney with this firm has personally reviewed the particular circumstances of your account," shields the attorney from a violation of 15 U.S.C. 1692e(3). Greco v. Cohen & Thomas, L.L.P., 412 F.3d 360 (2d Cir. 2005) "[A]n attorney can, in fact, send a debt collection letter without being meaningfully involved as an attorney within the collection process, so long as that letter includes disclaimers that should make clear to the `least sophisticated consumer' that the law firm or attorney sending the letter is not, at the time of the letter's transmission, acting as an attorney."