Whether it’s happened to you or you heard from a friend or acquaintance, debt collectors can be ruthless when it comes to satisfying a delinquent account. They will call, they will harass, they will seek out people around you, your workplace all in an effort to speak to you and to convince you to satisfy the debt or else. And, while the debt may truly stem from a loan or a payment that you defaulted on, the ruthless tactics and techniques used by debt collectors to satisfy the debt are oftentimes far in excess of the amount owed.
While the Fair Debt Collection Practices Act was enacted in part to control and stop such rogue practices, there are exceptions and when properly followed a debt collector may contact people that know you during its collection efforts. However, they are limited in what they can discuss with the third party and how many times they may contact him/her.
So, while the statute holds contact must be limited to ascertaining a debtor’s location, the question remains that when a debtor seeks to challenge the communication, whose burden is it to demonstrate the communication went beyond location information.
While a typical civil action generally places the burden of proof upon the plaintiff, in Evankavitch v. Green Tree Servicing, PICS No. 15-1100, a case of first impression the Third Circuit considered who was in a better position to know the facts surrounding a communication, plaintiff who would have no first hand knowledge of the conversation, or the defendant debt collector who should have access to the facts and circumstances surrounding the communication made.
In Evankavitch, plaintiff sought protection under the Fair Debt Collection Practices Act from a debt collector she learned was contacting her neighbors and family members in an effort to get them to convince her to call them back about a mortgage loan she had defaulted on some years prior. While plaintiff acknowledged the exception, which allows one call for the purpose of ascertaining a debtor’s location, plaintiff argued Green Tree exceeded the exception.
At the District Court level, the jury returned a verdict in favor of the plaintiff awarding her $1,000. On appeal, Green Tree argued the instruction to the jury that the burden of proof rested with the defendant was improper and therefore the jury’s award should be reversed. The Third Circuit disagreed. It held that where the communication is between the defendant and a third party, the defendant was in the better position to have information related to the nature of the communication, its basis, its purpose, the specifics surrounding the call and the number of calls made to a particular person. Accordingly, the decision was affirmed and the burden of proof was appropriately attributed to the defendants.