The Fair Debt Collection Practices Act (FDCPA) mandates that as part of noticing a debt, a debt collector must send the consumer a written notice containing -- along with other information – “the name of the creditor to whom the debt is owed.” This requirement is sometimes referred to as the “Debt Validation Notice.” In addition, the Act prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”
Surprisingly, many well established law firms have a fundamental misunderstanding of the application of this statutory requirement. A random survey of foreclosure actions filed throughout the State of Florida would reveal that a 1692(g) Validation Notice is routinely attached to mortgage foreclosure complaints. However, a “pleading,” such as a complaint in a lawsuit, can never be an “initial communication” that triggers the notice requirement under 1692(g). Moreover, sending such a notice can be deceptive and misleading to the “least sophisticated consumer.”
A recent case filed in United States District Court in Orlando, Florida, alleges that Shapiro, Fishman & Gache, LLP, acting as counsel for PHH Mortgage Corporation, filed a complaint in Seminole County, Florida, to foreclose on Linda Karp’s mortgage and to enforce a promissory note. Attached to the state court complaint and summons was a document entitled “Notice Required by the FDCPA, 15 U.S.C. Section 1692g.” The Notice was presumably served to inform Linda Karp of her rights concerning validation of the debt and provide her with 30 days to request validation of the debt. The summons issued by the court along with the foreclosure complaint informed Karp that she had 20 days to file a response with the court. Karp sued Shapiro, Fishman & Gache, LLP under the FDCPA alleging that the firm violated the Act because the Notice attached to the state court Complaint was deceptive and misleading to the “least sophisticated consumer.” The lawsuit alleges that the “least sophisticated consumer” could be deceived or confused when the summons sets out a 20-day deadline to respond to the lawsuit and the attached notice provides for a 30-day deadline to request validation of the debt. Karp further alleged that hundreds of other consumers received the identical notice in connection with their mortgage foreclosure lawsuit.
Karp v. Shapiro, Fishman & Gache, LLP, Case Number: 6-14-Civ-Orl-000046-28TB