Marx v. General Revenue Corp.
May 29, 2012
Case #: 11-1175
Court Below: 668 F.3d 1174 (10th Circ. 2011)
Full Text Opinion: http://www.ca10.uscourts.gov/opinions/10/10-1363.pdf
Civil Procedure: Whether (1) a facsimile from a debt collection agency to a third party regarding a consumer's employment information constitutes a communication and is therefore in violation of the Fair Debt Collections Practices Act (FDCPA) and (2) the Federal Rules of Civil Procedure permitting award of costs to a prevailing party is superseded by the cost provision of the FDCPA.
The Fair Debt Collections Practices Act (FDCPA) sets guidelines by which debt collectors may conduct business. Specifically, the law requires that a debt collector, when conveying information regarding the debt, may only communicate with the consumer, and prohibits discussion of the debt with third parties. In September 2008, after Petitioner defaulted on her student loan, the guarantor of the loan hired Respondent to collect the debt. Respondent sent a facsimile to Petitioner’s employer requesting employment information and verification to see if garnishment was an option. Petitioner filed suit in Federal District Court, alleging that the facsimile was in violation of the FDCPA.
The District Court ruled in favor of Respondent, holding there was no violation of the FDCPA, and awarded costs. The Court of Appeals for the Tenth Circuit affirmed, finding that the facsimile was not a “communication” as defined by the FDCPA. Further, the Court of Appeals held that the award of costs to Respondent was proper, and found the costs provision of the FDCPA, that specified an award of defendant’s attorney fees in suits brought in bad faith, did not supersede applicability of Rule 54(d) of the Federal Rules of Civil Procedure, which provides costs for the prevailing party.
On appeal Petitioner argues that the facsimile was a communication under the FDCPA and that the Tenth Circuit's decision awarding costs conflicts with decisions from the Ninth and Seventh Circuit.