Beware...a summons and complaint may be an initial communication under the FDCPA. - Michigan Collection Law Blog published By Michigan Creditor Lawyers Nitzkin & Associates
The United States District Court here in the 6th Circuit recently decided Jerman v Carlisle, 502 F Supp 2nd 686 (2007). While this is not an appellate decision, it may very well be a harbinger of the 6th circuit court of appeals' sentiment may lay with respect to the issue of whether a summons and complaint is an initial communication under the federal Fair Debt Collection Practices Act.
Until now, this issue has been unsettled in this circuit. Under the FDCPA, a debt collector has to send a validation notice to the debtor within 5 days of its initial communication with the debtor. Hence, if a law firm files a lawsuit to foreclose on a mortgage, it must send out a validation notice within 5 days of serving the complaint for foreclosure on the homeowners. This holding should be noted by every law firm that does mortgage foreclosures.
Law firms and attorneys that only dabble in debt collection and foreclosure BEWARE....many of you will most likely see a wave of FDCPA lawsuits naming you as defendants. While you may not want to get involved in the pre-suit "collection process" , you cannot avoid the strictures of the Fair Debt Collection Practices Act by refusing to call the debtor before you file suit. If you have had no pre-suit contact with the debtor, then your lawsuit IS the initial communication with the debtor. You MUST then send out a validation notice. The Jermane holding is a wake up call to every attorney and law firm that if you are going to sue someone on a consumer debt, you better send that consumer a validation letter within 5 days of serving the consumer with the complaint.
