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I am compelled to write in response to the commentary of Michael Harrison, published in this online space on June 29 (in print July 2) (“Calling out Judicial Bias Against Debt Collectors in NJ”). Harrison accuses two U.S. District Judges (including the Chief Judge) and a U.S. Magistrate Judge from the District of New Jersey of what he perceives as “bias” against debt collectors and a “remarkably poor understanding of the purpose of the” Fair Debt Collection Practices Act (FDCPA). Harrison’s reckless accusations must be addressed.

Harrison, a collection attorney and debt collector as defined by the FDCPA, has been sued for violations of the act numerous times. Searching PACER reveals around a dozen FDCPA suits in which he was a named defendant. It was a case he lost back in 1991 that led our Court of Appeals to first apply the “least sophisticated consumer” standard to protect debtors from deceptive and misleading collection letters. Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).  Over the years, judges including Chief Judge Linares, Judge Vazquez, Judge Walls, and the late Judge Pollak (who authored Graziano) have written opinions finding that his conduct runs afoul of the law. Far from evidence of some “bias,” these decisions evince a serial violator who fails to take seriously the act’s regulation of debt collectors.

Harrison’s cited examples of this “bias” by our judicial officers demonstrates his own “remarkably poor” understanding of the law that governs his business. In “calling out” Chief Judge Linares, he fails to mention important and dispositive context. For over 40 years, the plain language of the FDCPA (passed in 1977) has prohibited debt collectors from “[u]sing any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails….” 15 U.S.C. §1692f(8). In 2014, the Third Circuit applied this plain language in a case called Douglass v. Convergent to hold that this prohibition extends to account numbers visible through the window of collection envelopes. The disclosure of such information, Judge Scirica wrote, “implicates a core concern animating the FDCPA—the invasion of privacy.” Numerous district courts have later applied this logic to bar codes which, when scanned by a handheld device such as an iPad or cellphone, reveal the consumer’s unique account number. The plain statutory language is simple to understand and the directive of the courts is easy to abide—don’t put any markings on your collection envelopes.

Harrison omits mention of this decades-old statutory directive in his missive. He advances no explanation for his failure to abide this crystal-clear mandate. He doesn’t even argue that the law is wrong. Instead, Harrison inappropriately takes aim at the Chief Judge for simply applying a practical and useful law as written.

Harrison then attacks Magistrate Judge Dickson for his opinion granting attorney fees in the same case. Again, Harrison omits salient facts. For instance, the $500 hourly rate awarded was to an attorney with 29 years’ experience at the bar, a reasonable rate in this market by any standard. The court found Harrison’s evidence against the lawyer’s rate to be “inaccurate,” but the consumer movant was constrained to address Harrison’s arguments in his fee motion and reply. Having driven up the attorney fees in the case with baseless arguments, Harrison cannot complain that the attorney fees increased proportionately. Claims of some judicial “bias” are absurd.

Finally, Harrison criticizes Judge Vazquez for finding that one of his collectors’ statements was potentially misleading in that it falsely implied she was an attorney. The court correctly pointed out that a false representation, or an implication, that a non-attorney debt collector is an attorney is deceptive and a violation of the FDCPA. Again, this is well settled authority, plainly stated in the statute itself at 15 U.S.C. §1692e(3) and in the Third Circuit’s Rosenau v. Unifund opinion, both of which were cited by the district court. For Harrison—whose own name is on the seminal appellate opinion setting the standard for deceptive and misleading communications—to not know this is beyond the pale.

It is clear that Harrison is frustrated by consumers (acting as “private attorneys general”) holding his firm accountable for misdeeds in the federal courts. But frustration is no excuse for lashing out at judges who correctly apply this important consumer protection law. Harrison’s complaint has nothing to do with “bias” and everything to do with a debt collector’s choice to ignore the very law that governs his chosen area of practice.

 

Andrew M. Milz is a trial lawyer and partner at the Flitter Milz firm in Marlton. Flitter Milz was counsel for the successful plaintiffs/appellants in Douglass v. Convergent, Rosenau v. Unifund, and numerous other consumer protection cases of first impression in the Third Circuit.