Fein, Such, Kahn and Shepard, P.C. v. Allen
- Brief in Opposition (07/29/2011)
When Ms. Allen was unable to make the final payment on her thirty-year mortgage, the bank attempted to foreclose on her home. The law firm Fein, Such, Kahn and Shepard, P.C. (FSKS) brought a foreclosure lawsuit against her on behalf of the bank. In a letter to Allen’s attorney detailing the loan balance and additional charges due, FSKS requested payment of certain fees directly to itself. This request included hundreds of dollars in fees that are impermissible under state law, including fees that exceed legal limits, fees that cannot be charged to a debtor, and fees for work not actually performed.
Attempting to collect unauthorized fees from a debtor violates a provision of the Fair Debt Collection Practices Act (FDCPA), and Allen sued the law firm under this provision of the Act. FSKS argued that a communication sent to a debtor’s attorney, rather than directly to the debtor, can never violate the Act. The court of appeals disagreed, finding that a communication to a debtor’s attorney is an indirect communication to the debtor, and that neither the FDCPA as a whole nor the specific provision under which Allen sued provide an exemption for communications to attorneys. FSKS then petitioned the Supreme Court, and Public Citizen opposed the petition, working with Allen’s attorney. Our brief in opposition argued that creating an exception to the FDCPA for attorney-directed communications would be contrary to the text and purposes of the Act, and would allow debt collectors to seek unlawful expenses from debtors with impunity. The Court denied the petition.