Attorneys as Debt Collectors

[David A. Szwak]

Lawyers were originally excluded from this definition. In 1986, Congress removed the attorney exemption. Now, the "FDCPA does apply to a lawyer . . . with a general practice including a minor but regular practice in debt collection." Piper v. Portnoff Law Assocs., 396 F.3d 227 (3d Cir. 2005); Crossley v. Lieberman, 90 B.R. 682, 694 (U.S.D.C. E.D. Pa. 1988), aff'd., 886 F.2d 566 (3d Cir. 1989). Also, see: Fuller v. Becker & Poliakoff, P.A., 192 F.Supp.2d 1361 (U.S.D.C. M.D.Fla. 2002).

The legislative history of the amendment states that collection attorneys were not being effectively policed by the legal profession and courts, and that the removal of the exemption was necessary to "put a stop to the abusive and harassing tactics of attorney debt collectors." 1986 USCCAN 1756-57.

The precise amount of collection activity necessary to make a lawyer a "debt collector" – one who "regularly" collects consumer debts -- is not clear. Most recently in Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bartolotti, 374 F.3d 56, 62-63 (2d Cir. 2004), the Second Circuit considered the criteria for determining when a lawyer or law firm regularly engages in debt collection, stating that it “must be assessed on a case-by-case basis in light of factors bearing on the issue of regularity.â€

[David A. Szwak]

Russell v. Standard Federal Bank
Not Reported in F.Supp.2d, 2002 WL 1480808
E.D.Mich.,2002.
June 19, 2002

OPINION AND ORDER


ZATKOFF, Chief District J.


I. INTRODUCTION

*1 This matter is before the Court on Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. CIV. P. 56(a). Defendants Trott & Trott, P.C., namely David A. Trott, and Kathleen H. Trott, et al., filed a timely response. Plaintiff did not file a reply. In addition, Plaintiff filed a Motion to Consolidate Civil Actions Case No. 02-70054 /and/ Case No. 00-74811, and a Motion to/Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to FED. R. CIV. P. 60(b). Defendants Trott & Trott, P.C., namely David A. Trott, and Kathleen H. Trott, et al., filed a timely response, and Plaintiff filed a timely reply. The Court finds that the parties have adequately set forth the relevant law and facts, and that oral argument would not aid in the disposition of the instant motions. See E.D. MICH. L.R. 7.1(e)(2). Accordingly, the Court ORDERS that the motion be decided on the briefs submitted. For the reasons stated below, Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. CIV. P. 56(a), is DENIED. Pursuant to Fed.R.Civ.P. 12, the Court shall DISMISS Count II and Count III of Plaintiff's complaint. Plaintiff's Motion to Consolidate Civil Actions Case No. 02-70054 /and/ Case No. 00-74811 is DENIED, and Plaintiff's Motion to/Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to FED. R. CIV. P. 60(b) is DENIED.



II. BACKGROUND

Plaintiff filed an amended complaint on January 14, 2002, and alleged the following four counts: Intentional Breach of Contract Under Covenant 14. “Noticeâ€