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A debt collector whose letter to a person who bounced a check included the statement “you are either honest or dishonest you cannot be both” may have violated the Fair Debt Collection Practices Act, the 7th U.S. Circuit Court of Appeals has held. The 7th Circuit is the first to hold that such a statement could violate the FDCPA’s prohibition on using “unfair or unconscionable means” to attempt to collect a debt, in this instance allegedly by attempting to shame the debtor into repaying it, consumer lawyers say. The appeals panel remanded April McMillan’s FDCPA action against Collection Professionals Inc. of Macomb, Ill., to a federal district judge in Chicago, instructing the trial court to view claims alleging deceptive or misleading conduct as questions of fact requiring proof, rather than questions of law that a judge can decide, as they are in the other circuits. McMillan v. Collection Professionals Inc., No. 05-2745 (7th Cir.). Joseph S. Messer of Chicago’s Messer & Stilp, who represents Collection Professionals, pointed out that the decision extends FDCPA jurisprudence in a way that makes it more difficult for district court judges to dismiss such claims. “It’s an extension of the law that we’re not happy about,” Messer said, adding that defendants now are going to have to take these cases to summary judgment. In essence, the court made clear that the rule it developed earlier with regard to language in an initial debt-collection letter (Section 1692g) applies to two more sections of the FDCPA-those relating to language in a debt collector’s letter that contains false, deceptive or misleading representations (Section 1692e), or that employs unfair and unconscionable means to collect a debt (Section 1692f), Messer said. Consumer survey The rule allows plaintiffs to conduct a survey of what the 7th Circuit refers to as “unsophisticated consumers,” as distinct from the “least sophisticated consumer” standard of other circuits. The 7th Circuit said in Gammon v. GC Services, 27 F.3d 1254 (7th Cir. 1994), that the latter standard set the bar too low for determining that the language at issue is false or misleading. Now the rule applies also to language allegedly disgraceful, or as in this instance, calling into question McMillan’s honesty. David J. Philipps of Gomolinski & Philipps of Hickory Hills, Ill., who represents McMillan, said that the court made it clear that if a debt collector says something confusing to a debtor, the debtor has the right to present a consumer survey that shows this to the court. Philipps said that several consumer surveys are still “working their ways through the trial courts.” He added that he is waiting to see what happens when the 7th Circuit issues its mandate. Richard J. Rubin, a solo practitioner in Santa Fe, N.M., who represents consumers in credit and debt collection abuse litigation around the country, said that this is the first time he is aware of that the unfair conduct issue was litigated. Debt collectors are always looking for new ways to get debtors’ attention, Rubin said, asking themselves: “How can I get an edge on the other people this person owes money to? How do you get people to put you at the top of the list this month?”

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