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August 26, 2006

9th Circuit Issues First Impression of Fair Debt Collection Act

One provision of the Fair Debt Collection Practics Act provides:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section ....
(2) The false representation of--
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
The Ninth Circuit recently became the first appellate court to decide that this section contained an intent requirement: it was not enough for the representatin to be false, it had to be knowingly false. Clark v. Capital Credit & Collection Serv. Inc. 2006 WL 2441705 (9th Cir. 2006).

Without first saying that the text was ambiguous, the court relied on dictionary definitions and "holistic" methods of interpretation to reach its conclusion. It's quite a good read, in that the court ultimately relies on the purpose of the statute (though it calls it intent -- to reign in abuse by debt collectors), as well as what it deems to be a "windfall" that would accrue were intent not required as an element of this statute. It is, in the main, a conclusion, first, and and a rational search for meaning, second.

August 26, 2006 in Current Affairs | Permalink


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