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

May 17, 1994

Basil J. Mezines, Esquire
Stein, Mitchell and Mezines
1100 Connecticut Avenue, N.W.
Washington, D.C. 20036

Dear Basil:

David Medine has asked me to reply to your letter of April 20 concerning whether a debt collector that provides check collection and verification services for a district attorney violates the Fair Debt Collection Practices Act (Act).

The Act does not prohibit a debt collector from entering into a contractual relationship with a district attorney's office to provide check collection and verification services. However, the Act continues to regulate the way in which the services are provided; a debt collector cannot insulate itself from the Act simply by substituting a DA's name for its own name on its collection letters.

Because Mr. Kidwell did not provide many details about how his agency's debt collection services would be rendered, it is difficult to render an opinion about them. We can, however, make the following observations:

1) The Act does not address the amount of any surcharge that is assessed; thus, we have chosen not to place arbitrary limits on what a debt collector can charge in any given situation. Whatever the charge, however, it must be permitted by applicable state statutory and common law in accordance with the guidelines set out on p. 50108 of the Staff Commentary on the Act.

 

2) A debt collector that prints and sends dunning letters under a DA's letterhead takes the same risks as a collector that handles so-called "normal" attorney letters. The letterhead implies that the letters are from the DA; it also implies that the DA controlled or supervised the process through which the letters were sent and had formed an opinion about how to manage the cases of each of the recipients. In sum, such letters imply that the DA was and is substantially involved in each of the matters addressed therein. If this is not true, then the debt collector would probably violate Section 807(10) of the Act by printing and sending such letters.

There also may be a problem with Section 807(14) if the debt collector uses the DA's name rather then its own to collect its own debts.

Section 806(3) sets forth the only limitation in the Act on the use of InstaChek's database. Publication of the database in the form of coded lists is, of course, permitted by current case law if certain criteria are met.

Finally, we do not understand Mr. Kidwell's comment about "stating the law." It is often true that "statements of the law" in dunning letters imply that whatever legal remedies are described will be sought by the collector if the consumer does not pay. If this is not true, using such statements in dunning letters may violate Section 807.

I hope this has been helpful.

Sincerely,

John F. LeFevre