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The Wide Net of the Fair Debt Collection Practices Act

On Behalf of | May 3, 2013 | Uncategorized

Some debt collectors play fair.  Others do not.  The Fair Debt Collection Practices Act[1] (“FDCPA”) polices the line between ethical business practice and harassment.   However, debt collection practices prohibited by the FDCPA are not limited to egregious abuses.  Instead, the act gives consumers broad protection.  Proscribed tactics span the gamut from blatantly abusive threats against a debtor’s assets, credit, or even family to simply continuing to call a debtor after a verbal request to stop.  This article will briefly describe the history and purpose of the FDCPA and its treatment in Missouri courts.

I.  An FDCPA Primer

Congress enacted the FDCPA in 1977 to for two primary purposes:  first, to remedy abusive, unfair, and deceptive debt-collection practices, and second, to prevent competitive disadvantage for ethical debt collectors who refrained from such practices.[2]  The act thus protects both consumers and the debt collection industry as a whole.  It also provides some measure of national uniformity in policing debt collection practices, since many state pre-FDCPA either had ineffective debt collection laws or lacked such laws entirely.[3]

The FDCPA contains many restrictions on debt collection practices.  These include limitations on who the collector may contact for information about the consumer[4] and when such contact may be made.[5]  Another important right the act extends is the consumer’s right to request that the collector cease communication with the consumer via telephone calls.[6]

It also defines several broad categories of prohibited collection tactics.  First, collectors may not “harass, oppress, or abuse” the consumer through threats of violence, profane or obscene language, constant telephone calls, or telephone calls without disclosure of the collector’s identity.[7]  Second, collectors are prohibited from employing “false, deceptive, or misleading representation[s] or means,” including a false representation of affiliation with a United States or State agency, a false representation or implication that the collector is an attorney or that the communication is from an attorney, and any threat of arrest, imprisonment, or suit where such action is either unlawful or the collector does not intend to follow through on such threats.[8]  Finally, the act proscribes “unfair or unconscionable” practices such as collecting any fee or interest not expressly authorized in the agreement creating the debt, using collect telephone calls to conceal the caller’s identity, and threatening to take possession of any of the consumer’s property if the collector either lacks the right to do so or does not intend to do so.[9]

But the protections afforded by the act are even broader than these categories suggest.  For example, a consumer has thirty days from the collector’s initial communication regarding the debt to dispute any part of the debt.[10]  Once the consumer declares his or her intent to dispute the debt in writing, “the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt” and mails such verification to the consumer.[11]  Moreover, Provisions like these sharply curb a collector’s predilection for vigorous pursuit of payment.

To enforce these provisions, Congress created a private cause of action for consumers which allows them to recover any actual damages, statutory damages of up to $1000 per violation, and attorney’s fees.[12]  In determining the amount of damages, the statute requires courts to consider:  (1) the frequency and persistence of noncompliance, (2) the nature of such noncompliance, and (3) the extent to which such noncompliance was intentional.[13]  The act primarily creates strict liability for violations, with only a very limited bona fide error defense.[14]  Nevertheless, one significant limitation on actions under the act is its one-year statute of limitations.[15]

Technological innovation also presents challenges to enforcement of the FDCPA, which was enacted before widespread use of the internet, e-mail, and even voicemail communications.[16]  Nevertheless, the act is broadly worded, and courts have extended its principles to new communication media in order to combat ruthlessly innovative debt collectors.[17]

II.  FDCPA Claims in Missouri Courts

An analysis of Missouri state and federal cases shows a number of trends in the evolution of FDCPA enforcement.  While the major themes discussed above are still in play in Missouri as a general matter, it is helpful to explore how our state’s federal and state benches interpret the act.

  1. The Cause of Action

The private cause of action under the FDCPA has four required elements in addition to a violation of one its provisions.  First, the plaintiff must be a “consumer.”[18]  Second, there must be a “debt.”[19]  Third, the alleged debt collector must participate in interstate commerce.[20]  Finally, the defendant must be a “debt collector.”[21]  The act provides definitions for each of these key terms.  Courts defer strongly to these statutory definitions because much of the language is clear and unambiguous.[22]

  1. Consumer

A consumer is “any natural person obligated or allegedly obligated to pay any debt.”[23]  This definition is typically construed broadly in Missouri.  For example, in Dunham, the Eighth Circuit rejected a narrow interpretation of the language “allegedly obligated to pay.”[24]  A collector mistakenly attempted to collect from the plaintiff, who bore the same name as the debtor.[25]  Because the collector’s letters asserted that the plaintiff was the debtor and demanded that he pay the debt, he was “allegedly” obligated to pay the debt notwithstanding the fact that he was not the actual debtor.[26]  Moreover, the Eighth Circuit implied without holding in Richmondthat a collector can violate the FDCPA in communications with a consumer’s attorney.[27]

Nevertheless, some courts have applied the statutory definition strictly.  In Rhodes, the plaintiffs purchased land from Louise Wilson.[28]  Ms. Wilson had previously used the land as collateral to secure a loan.[29]  After her death, the loan went into default and the lender foreclosed.[30]  The Missouri Court of Appeals found that, because the plaintiffs themselves owed no debt to the lender-defendant, they did not qualify as “consumers” under the FDCPA.[31]

  1. Debt

The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”[32]  This definition, like the definition of “consumer,” is broadly interpreted.  As Volden noted, “‘[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation)’ is deemed the collection of a debt.”[33]  The Eighth Circuit has extended that term to include even dishonored checks, holding that “[t]he FDCPA is clearly worded and broadly defines debt as ‘any obligation’ to pay arising out of a consumer transaction.  It therefore can be applied to appellants’ dishonored checks.”[34]  The court refused to restrict the meaning of “transaction” and instead gave the term its ordinary meaning.[35]

Toeing the line of the statute’s clear language brings with it some limitations.  Crucially, the FDCPA is constrained to “consumer debt,” which arises only from a “consensual transaction for the purchase of consumer goods or services.”[36]  In other words, while “personal, family, or household” debts are subject to the FDCPA,[37] commercial debts[38] or non-consensual debts[39] are not.

  1. Debt Collectors and Creditors

One of the most litigated issues in Missouri FDCPA cases is the distinction between a “debt collector” and a “creditor.”  Consequently, one of the easiest pitfalls for an attorney making an FDCPA claim to fall in to is suing either the wrong party or suing a party to whom the FDCPA does not apply.[40]

An FDCPA “debt collector” is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”[41]  The act then limits this otherwise expansive definition to exclude any “officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor,” among other limitations.[42]  Courts further limit the term “debt collector” by focusing on the “principal purpose” and “regularly” language.  If a defendant’s primary purpose is not the collection of debts, the FDCPA may not apply.[43]  One court found that a defendant was not a collector even where 10% of its employees engaged in debt collection.[44]  However, it is important to note that the act applies even to attorneys if they principally or regularly collect debts.[45]

Related to limitations on the definition of “debt collector” is the definition “creditor” under the act.  The statutory definition states that a creditor is “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.”[46]  More important than any internal limitation on the definition of “debt collector” is the fact that any creditor seeking to collect its own debt is generally excluded from regulation.[47]  For purposes of this act, a debt collector must be one seeking to collect the debts of another.[48]

  1. The Unsophisticated Consumer

What does it really mean for a practice to be abusive, deceptive, or unfair?  As with other FDCPA provisions, courts are generous to consumers in their test for analyzing potential violations.  Strand summarized this standard effectively:

A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which is “designed to protect consumers of below average sophistication or intelligence without having the standard tied to ‘the very last rung on the sophistication ladder.’”  Duffy v. Landberg, 215 F.3d 871, 874 (8th Cir.2000) (quoting Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997)).  This standard protects the uninformed or naive consumer, yet also contains an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection letters.  Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1054-1055 (8th Cir. 2002).[49]

This standard does not require the plaintiff to present survey evidence of actual confusion in order to prevail.[50]  Neither does it require that a plaintiff be subjectively confused.[51]  Despite the low bar this test presents, the Eighth Circuit has enforced its limits.  In Peters, for example, the court refused to hold that any literally false statement in a debt collection letter constitutes a per se violation of the FDCPA.[52]

  1. Actual and Statutory Damages, Attorney’s Fees

As noted above, the act requires courts to consider certain factors in determining the total amount of damages, whether of actual or statutory damages, attorney’s fees, or a combination thereof.[53]  Plaintiffs in FDCPA cases often plead actual damages based on emotional distress caused the defendant’s violations.[54]  More specifically, these allegations typically involve “mental anguish and humiliation” from collector intimidation,[55] fear from the threat of lawsuit,[56] or fear of public exposure of the consumer’s debt problems, which could lead to job loss.[57]  Missouri courts will readily reduce the amount pleaded where they find it excessive in light of the factors.[58]

Statutory damages, by contrast, may be awarded without any showing of actual damages.[59]  Instead, courts focus on the egregiousness of the defendant’s conduct under the factors of section 1692k(b)(1) to determine whether statutory damages are warranted.[60]  In the Eighth Circuit, however, courts have discretion to refuse to award statutory damages for “de minimis or technical” violations of the act.[61]  Furthermore, courts have broad discretion within the $1000 range—a judge may award as little as $25 for a single violation that caused no actual damages and was arguably unintentional.[62]

A unique and powerful feature of the FDCPA liability provision is that is requires an award of reasonable costs and attorney’s fees “in the case of any successful action.”[63]  The Court in Pineda underscored this fee-shifting requirement, concluding that an award of attorney’s fees is still required although “n consumer protection cases, the amount of attorneys’ fees is often higher than the underlying damages recovered by the plaintiff.”[64]  This element makes FDCPA more viable for consumers because it attracts attorneys to such claims despite their typically low actual or statutory damage recovery.  It also serves as the true “hammer” that deters abusive collection practices.[65]  To determine the reasonableness of a request for such fees, courts employ a traditional lodestar method.[66]  Courts have discretion to award similar costs and fees to defendants where a plaintiff’s entire FDCPA action was brought in bad faith.[67]

  1. Non-Debtors and FDCPA Relief

Even non-debtors enjoy some protections afforded by the act.  Relevant provisions include sections 1692b,[68] 1692c,[69] and 1692d.[70]  For example, in Pratt, a collector made repeated phone calls to the plaintiff over a nine-month period.[71]  The plaintiff was not the consumer the collector sought, nor did the plaintiff know of anyone by the name of the consumer identified in the calls.[72]  The collector continued to call even after the plaintiff informed the collector that he was not the person they sought.[73]  The district court refused to grant the defendant summary judgment, reasoning that a trier of fact could infer from such conduct that the collector intended to harass the plaintiff in violation of section 1692d.[74]

  1. Deception, Misleading, and Unfairness

With these basic elements in place, we will now explore the kinds of conduct that constitute violations of the FDCPA.  Violations typically stem from the three broad category of prohibited conduct, outlined above,[75] although in practice courts are not always clear in connecting particular acts to particular provisions or sub-provisions.  A brief survey of violations in Missouri FDCPA cases, both common and extraordinary, will help highlight the way the FDCPA can empower an aggrieved debtor.

One of the most common claims by consumers in FDCPA actions is that the collector threatened action that could not legally have been taken.  In Wilhelm, the collector sent the consumer a letter in which it threatened to sue if the amount due was not paid.[76]  The letter contained the following language:


The letter did not contain the required disclosures, including informing the consumer of his right to dispute the debt and request verification.[78]  The consumer responded to the letter by disputing the debt and demanding its verification.[79]  The district court granted summary judgment to the collector.[80]  It found that a collector is not required to verify a debt upon request, but may instead cease all collection activities.[81]  Because the collector did not sue the consumer, the district court found that it ceased all collection activities and did not violate the FDCPA.[82]

The Eighth Circuit reversed.[83]  First, it noted that the collector never provided the consumer with the required initial disclosures.[84]  Without them, the collector’s threat to sue amounted to action that could not legally be taken under section 1692e(5).[85]  Second, the collector’s categorical threat to sue did not sufficiently apprise the consumer of his right to dispute the debt or the fact that the collector would not (and could not) sue a consumer who timely exercised that right.  The court concluded that such a threat could have been a deceptive means to collect the debt.[86]

Another frequent complaint from consumers is that a collector misrepresented its identity in order to obtain contact information about the consumer.  In Thomas, a collector attempted to contact a consumer, Thomas Elton, about a $295 debt owed to Washington University School of Medicine.[87]  An employee of the collector, Philip Braswell, called the consumer’s home phone, which his girlfriend, Mamta Thakkar, answered.[88]  Braswell asked for Thomas, but he was not at home.[89]  Braswell identified himself as “Jason,” who was ostensibly Thomas’s brother, and intimated to Thakkar that the matter was urgent.[90]  Thakkar claimed severe emotional distress resulting from her panic after the phone call.[91]

The district court refused to grant summary judgment to the defendant collector.  The court reasoned that although a collector’s employee may lawfully use a “desk name” to conceal his true identity, such an alias must be used consistently and allow the employer to identify the employee’s true identity.[92]  In this case, the court found that “Jason” was not Braswell’s desk name but that the collector attached the name “to Thomas’s file and knew “Jason” was important to Thomas personally.[93]  The court concluded that a reasonable jury could find that such a tactic was deceptive.[94]  Further, the court found that although the call was made to the consumer’s girlfriend, the plain language of section 1692b prohibits such conduct in communications with any person.[95]

Collectors must generally cease communication with a consumer upon request.[96]  Continued calls after such a request are another typical violation found in FDCPA cases.  In Jenkins, a collector telephoned a consumer at her place of employment, and during that conversation threatened to sue her.[97]  The consumer informed the collector that she could not receive personal calls at work.[98]  Despite this notice, the collector later called her again at her work and restated its threat sue her and garnish her wages.[99]  During a third call to her work, the consumer against again informed the collector that she was not to receive personal phone calls at work.[100]  The collector called her again at work three hours later.[101]  The district court, accepting these facts as true because the defendant defaulted, found that they constituted a violation of section 1692c(a)(3), which protects consumers from calls to their workplace where the collector knows that such calls are prohibited by the consumer’s employer.[102]

Not all Missouri courts are so apt to deter unrelenting phone calls.  While most find the plain language of the act expansive, the court in VanHorn concluded that “absent egregious conduct or intent to annoy, abuse, or harass, a debt collector does not violate the FDCPA by persistently calling in the attempt to reach a debtor regarding a debt owed and due.”[103]  There, the collector made almost daily calls to the consumer over a four-month period.[104]  In one instance, the collector made six calls in one day.[105]  Despite the collector’s persistent calling, the court granted the collector summary judgment.  The court surveyed cases which found no harassment under section 1692d even where the collector made daily calls or even calls more than once per day.[106]  It instead held that a pattern of daily phone calls does not reach the level of “harassment” unless the collector engages in some other egregious misconduct or acts with the intent to harass or annoy.[107]  While the language of the act appears to forgo any intent requirement,[108] this case shows that even the broad scope of the FDCPA is without potential limits.

Other limitations drawn from the cases are relatively minor.  For example, an attempt to collect a potentially time-barred debt does not, standing alone, violate the FDCPA.[109]  Instead, a threat of litigation or actual litigation must accompany the attempt.[110]  Also, the Eighth Circuit has refused to adopt the rule that “a debt collector’s fact allegations are false and misleading for purposes of § 1692e when rejected as not adequately supported in [a] collection suit.”[111]  Finally, the unauthorized practice of law does not violate the FDCPA of its own accord.[112]

III.  Conclusion

The FDCPA casts a wide net around abusive, deceptive, or unfair collection tactics.  Missouri courts have generally applied the statute in liberal fashion to benefit consumer debtors.  As this article indicates, there is a substantial amount of precedent to guide the practitioner in this area of the law.  Practitioners dealing with indebted clients will benefit by developing a basic understanding of the FDCPA so that they can spot and effectively address proscribed collection tactics to benefit their clients.

[1] 15 U.S.C. § 1692 et seq. (2006).

[2] S. Rep. No. 95-382, at 1–2 (1977).

[3] Colin Hector, Comment, Debt Collection in the Information Age:  New Technologies and the Fair Debt Collection Practices Act, 99 Cal. L. Rev. 1601, 1606 (2011).

[4] 15 U.S.C. § 1692(b) (2006).

[5] § 1692(c).

[6] Id.

[7] § 1692(d).

[8] § 1692(e).

[9] § 1692(f).

[10] § 1692(g).

[11] Id.

[12] § 1692(k); Henderson v. S&W Foreclosure Corp., No. 1:11CV169 HEA, 2012 WL 43505, at *3 (E.D. Mo. Jan. 9, 2012).

[13] § 1692(k)(b)(1).

[14] Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1611–12 (2010) (declining to adopt an expansive reading of § 1692k(c) and instead affirming that “an act may be “intentional” for purposes of civil liability, even if the actor lacked actual knowledge that her conduct violated the law”).

[15] § 1692k(d); see also Mattson v. U.S. West Comms., Inc., 967 F.2d 259, 261 (8th Cir. 1992) (finding that the statute of limitations began to run once the collector placed the violative letter in the mail, not when the consumer actually received it); but see Murphy v. MRC Receivables Corp., No. 06-0299-CV-W-NKL, 2007 WL 148823, at *3 (W.D. Mo. Jan. 12, 2007) (allowing FDCPA claims where four out of seven allegedly violative letters were not time-barred).

[16] Kojetin v. C.U. Recovery, Inc., No. Civ.97–2273 (JRT/RLE), 1999 WL 33916416, at *4 (D. Minn. Feb. 17, 1999); Hector, note 3 at 1604.

[17] Hector, note 3 at 1611­–12.

[18] Lester E. Cox Med. Center v. Huntsman, No. 003276CVSDWECF, 2003 WL 22004998, at *7 (W.D. Mo. Aug. 5, 2003).

[19] Id.


[21] Id.

[22] See, e.g. , Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006); Duffy v. Landberg, 133 F.3d 1120, 1123 (8th Cir. 1998) (“Since the statutory language is clear, it is not necessary to consult the legislative history[.]”).

[23] 15 U.S.C. § 1692(a)(3).

[24] Dunham v. Portfolio Recovery Assocs., 663 F.3d 997, 1002 (8th Cir. 2011).

[25]  Id. at 999–1000.

[26] Id. at 1002.

[27] Richmond, 435 F.3d at 828.

[28] Rhodes v. Westoak Realty & Inv., Inc., 983 S.W.2d 565, 566 (Mo. App. E.D. 2012).

[29] Id.

[30] Id.

[31] Id. at 567.

[32] 15 U.S.C. § 1692(a)(5).

[33] Volden v. Innovative Finan. Sys., Inc., 440 F.3d 947, 951 (8th Cir. 2006) (emphasis in original).

[34] Duffy v. Landberg, 133 F.3d 1120, 1123 (8th Cir. 1998).

[35] Id.

[36] Mills v. City of Springfield, No. 2:10-CV-04036-NKL, 2010 WL 3526208, at *15 (W.D. Mo. Sept. 3, 2010) (citing Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997)).

[37] Heintz v. Jenkins, 514 U.S. 291, 293 (1995).

[38] DZ Bank AG Deutsche Zentral-Genossenschafts-Bank v. John F. Dietrich Ins., Inc., No. 4:09CV01790HEA, 2010 WL 502979, at *2 (E.D. Mo. Feb. 8, 2010); Shafe v. Tek-Collect, Inc., No. 07-00327-CV-W-REL, 2007 WL 4365726, at *2 (W.D. Mo. Dec. 10, 2007) (“[T]he FDCPA does not cover collection of commercial debts even when the collection efforts are directed at an individual.”).

[39] Mills, 2010 WL 3526208, at *15–16 (“debt” does not include fines, which are non-consensual).

[40] Schmitt v. FMA Alliance, 398 F.3d 995, 998 (8th Cir. 2005) (“[A] distinction between creditors and debt collectors is fundamental to the FDCPA, which does not regulate creditors’ activities at all.”) (quoting Randolph v. I.M.B.S., Inc., 368 F.3d 726, 729 (7th Cir. 2004))  (internal quotation marks omitted).

[41] 15 U.S.C. § 1692(a)(6).

[42] See id.

[43] Vogler v. Grier Grp. Mgmt. Co., 309 S.W.3d 328, 331–32 (Mo. App. E.D. 2010); Worch v. Wolpoff & Abramson, LLP, 477 F. Supp. 2d 1020, 1023­–24 (E.D. Mo. 2007).

[44] Griffin v. Bailey & Assocs., Inc., 855 F.Supp. 1047, 1048–49 (E.D. Mo. 1994).

[45] Heintz v. Jenkins, 514 U.S. 291, 294 (1995).

[46] 15 U.S.C. § 1692(a)(4).

[47] See, e.g., McWilliams v. Chase Home Finan., LLC, No. 4:09CV609 RWS, 2010 WL 1817783, at *2 (E.D. Mo. May 4, 2010); Wells v. Sw. Bell Tel. Co., 626 F. Supp. 2d 1001, 1005 (W.D. Mo. 2009).

[48] Worley v. Credit Acceptance Corp., No. 11-00014-CV-W-FJG, 2011 WL 833334, at *1 (W.D. Mo. Mar. 4, 2011).

[49] Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317–18 (8th Cir. 2004).

[50] Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1057 (8th Cir. 2002).

[51] McCafferty v. Schwartzkopf Law Office, No. 4:10 CV 1401 RWS, 2012 WL 176439, at *1–2 (E.D. Mo. Jan. 20, 2012).

[52] Peters, 277 F.3d at 1055­–56.

[53] Note 13 and accompanying text; McCafferty v. Schwartzkopf Law Office, No. 4:10 CV 1401 RWS, 2012 WL 1660819, at *2 (E.D. Mo. May 11, 2012).

[54] Missey v. Watson Acquisition Grp., LLC, No. 4:10CV01788 AGF, 2011 WL 864901, at *1 (E.D. Mo. Mar. 10, 2011).

[55] Jenkins v. E. Asset Mgmt., No. 4:08-CV-1032 CAS, 2009 WL 2488029, at *3 (E.D. Mo. Aug. 12, 2009).

[56] Poniewaz v. Regent Asset Mgmt. Solutions, Inc., No. 4:10-CV-867 (CEJ), 2010 WL 3584368, at *2 (E.D. Mo. Sept. 7, 2010).

[57] Missey, 2011 WL 864901, at *2.

[58] See, e.g., Poniewaz, 2010 WL 3584368, at *1–2 ($1,500 requested, $500 awarded because request was excessive in light of the defendant’s minimally invasive, infrequent calls);Missey, 2011 WL 864901, at *1–2 ($10,000 requested, $2,000 awarded).

[59] See Lester E. Cox Med. Center v. Huntsman, 408 F.3d 989, 993 (8th Cir. 2005).

[60] Id.

[61] Id. at 993–94 (district court did not abuse its discretion in refusing to award statutory damages where violations were “not frequent, persistent, or intentional and minor in nature”).

[62] McCafferty v. Schwartzkopf Law Office, No. 4:10 CV 1401 RWS, 2012 WL 1660819, at *2 (E.D. Mo. May 11, 2012).

[63] 15 U.S.C. § 1692(k)(a)(3).

[64] Pineda v. P&B Capital Grp., LLC, No. 4:11–00503–CV–DGK, 2011 WL 6356866, at *2 (W.D. Mo. Dec. 19, 2011).

[65] Rex C. Anderson, Fair Debt Collection Practices Act:  A Law Needing Updating?, 89-SEP Mich. B.J. 28, 29 (2010).

[66] Terry v. C&D Complete Bus. Solutions, No. 09–00799–CV–W–DGK, 2011 WL 2144614, *1 (W.D. Mo. May 31, 2011).

[67] 15 U.S.C. § 1692(k)(a)(3); Eckert v. LVNV Funding LLC, 647 F. Supp. 2d 1096, 1105 (E.D. Mo. 2009) (plaintiff’s entire “action” must have been brought in bad faith).

[68] 15 U.S.C. § 1692(b) (“Any debt collector communicating with any person other than the consumer…”) (emphasis added).

[69] Id. § 1692(c)(b) (“Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector . . . a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.”)

[70] Id. § 1692(d) (“A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”) (emphasis added).

[71] Pratt v. CMRE Finan. Servs., Inc., No. 4:10–CV–2332 (CEJ), 2012 WL 86957, at *2 (E.D. Mo. Jan. 11, 2012).

[72] Id.

[73] Id. at *3.

[74] Id. at *4.

[75] See notes 7–9 and accompanying text.

[76] Wilhelm v. Credico, Inc., 519 F.3d 416, 417 (8th Cir. 2008).

[77] Id. at 419.

[78] Id.

[79] Id. at 417.

[80] Id.

[81] Wilhelm, 519 F.3d at 419.

[82] Id.

[83] Id. at 420.

[84] Id. at 419.

[85] Id.

[86] Wilhelm, 519 F.3d at 419.

[87] Thomas v. Consumer Adjustment Co., 579 F. Supp. 2d 1290, 1293 (E.D. Mo. 2008).

[88] Id. at 1292.

[89] Id.

[90] Id.

[91] Id. at 1293.

[92] Thomas, 579 F. Supp. 2d at 1294.

[93] Id. at 1295–96.

[94] Id. at 1296.

[95] See id. at 1297.

[96] Jenkins v. E. Asset Mgmt., No. 4:08-CV-1032 CAS, 2009 WL 2488029, at *1 (E.D. Mo. Aug. 12, 2009).

[97] Id.

[98] Id.

[99] Id.

[100] Id.

[101] Jenkins, 2009 WL 2488029, at *1.

[102] Id. at *2.

[103] VanHorn v. Genpact Servs., LLC, No. 09–1047–CV–S–GAF, 2011 WL 4565477, at *3 (W.D. Mo. Feb. 14, 2011).

[104] Id. at *1.

[105] Id.

[106] Id. at *3–4.

[107] Id. at *4.

[108] See 15 U.S.C. § 1692(d) (“A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”) (emphasis added).  While the court in Pratt did not find against the consumer, it too seems to have implied a requirement of intent to harass which is not evident from the statute or case law.  See Pratt v. CMRE Finan. Servs., Inc., No. 4:10–CV–2332 (CEJ), 2012 WL 86957, at *4 (E.D. Mo. Jan. 11, 2012).

[109] Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001).

[110] Id.

[111] Hemmingsen v. Messerli & Kramer, PA, 674 F.3d 814, 819 (8th Cir. 2012).

[112] Lavender v. Wolpoff & Abramson, L.L.P., No. 07-0015-CV-W-FJG, 2007 WL 3244189, at *3 (W.D. Mo. Nov. 1, 2007).