Third Circuit Clarifies FDCPA Restrictions On Third-Party Communications

Action Item: Lenders and servicers should continue to maintain policies and procedures that minimize third-party communications and ensure maintenance of sufficient records documenting the frequency and purpose of those communications.

In Evankavitch v. Green Tree Servicing, LLC, the Third Circuit considered, as a matter of first impression, which party bears the burden with respect to alleged improper third-party communications under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). Evankavitch v. Green Tree Servicing, LLC, ---F.3d---, 2015 WL 4174441, at *1 (3d Cir. Jul. 13, 2015). Put differently, the court was asked to determine whether the debt collector must prove that allegedly improper third-party communications fall within § 1692b's exception, or whether it is incumbent on the debtor to disprove the applicability of that exception as an element of his claim. Id.