In debt collection, the consumer’s Fair Debt Collection Practices Act (FDCPA) validation rights, as spelled out in section 1692g, are all but sacred. Whether a debt collector’s communications overshadow the consumer’s 30 day window to dispute the validity of a debt remains a hot button issue. In Arellano v. Clark County Collection Service, LLC and Borg Law Group, LLC, No. 2:15-cv-01424 (D. Nev. Aug. 28, 2018), the District of Nevada recently reviewed whether information in a court summons can overshadow the 1692g validation rights. However, the decision revolved around whether a summons in a court proceeding constitutes a communication.
Factual and Procedural Background
Clark County Collection Service, LLC (CCCS), through its attorneys at Borg Law Group, LLC, sued plaintiff in state court to collect on a debt. While the complaint told plaintiff that she had 30 days from receipt to dispute the validity of the debt, she also received a summons for the matter that stated she had 20 days to answer CCCS’s complaint.
Plaintiff sued CCCS and Borg Law Group alleging that the 20 day answer requirement in the summons overshadows her 1692g validation rights. Defendants filed a motion for summary judgment on the matter.
The court granted summary judgment for the defendants, finding that the summons does not overshadow plaintiff’s validation rights.
In making its decision, the court first determined whether or not the summons falls into the FDCPA’s definition of “communication.” The court pointed to precedent that states a formal pleading in a civil action is not a communication per the FDCPA. While both parties agreed that the complaint was not a communication, the question came down to whether the summons should receive the same treatment. Defendants argued that the summons is not a communication because it makes no reference to the debt. The court agreed with defendants. Since the summons was not an actionable communication, the court found no FDCPA violation.
Whether something falls into the FDCPA’s definition of a “communication” is a question often raised in the ARM industry, especially as modern technology changes the way debt collectors communicate with consumers. However, sometimes clarity is still needed at the basic level. In the context of litigation, deadlines to answer a complaint are determined by the jurisdiction’s rules of civil procedure. If an answer deadline did overshadow the consumer’s 1692g rights, then debt collection law firms would be left in a tough situation. Luckily, that doesn’t appear to be the case, at least not in Nevada.