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Post Number: 1681
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LEXSEE 961 F.2D 459,AT 461

SUSAN J. CARROLL, Plaintiff-Appellant, v. WOLPOFF &
ABRAMSON, Defendant-Appellee.

No. 91-2201


961 F.2d 459; 1992 U.S. App. LEXIS 5567

February 5, 1992, Argued
March 30, 1992, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court for the
District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge.


LexisNexis (TM) HEADNOTES - Core Concepts:

Delaware, for Appellant. ON BRIEF: O. Randolph Bragg, UAW LEGAL SERVICES PLAN,
Newark, Delaware, for Appellant.

Ronald Scott Canter, Bethesda, Maryland, for Appellee.

JUDGES: Before SPROUSE, WILKINSON, and WILKINS, Circuit Judges. Judge Sprouse
wrote the opinion, in which Judge Wilkinson and Judge Wilkins joined.



[*460] OPINION

SPROUSE, Circuit Judge:

Susan Carroll appeals the district court's grant of summary judgment to the law
firm of Wolpoff and Abramson on her claim that the firm, acting as collection
agents for a creditor, violated the Fair Debt Collection Practices Act, n1
specifically, 15 U.S.C. 1692e(11). The law firm's first collection letter to
Carroll included the information required by section 1692e(11), but its
follow-up letter did not. The district court, holding that a collection agency's
follow-up notice need not comply with section 1692e(11), granted summary
judgment to the law firm. n2 We disagree and reverse.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 15 U.S.C. 1692-1692o. [**2]

n2 The district court also granted summary judgment to the law firm on
Carroll's claims that the letter was misleading in violation of 15 U.S.C.
1692e(10) and that the law firm failed to send a notice of debt in violation of
15 U.S.C. 1692g. These issues are not raised on appeal.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Macy's Northeast, Inc., retained the law firm of Wolpoff and Abramson to collect
$ 1,841.11 owed by Susan Carroll to the department store. Wolpoff and Abramson
brought suit on the debt in Maryland state court after Carroll failed to respond
to its two collection letters. During the bench trial, Carroll admitted owing
the debt and judgment was entered against her in May of 1990. On June 11, 1990,
the law firm wrote Carroll, stating: "Your past due account is in our office for
legal action. It is imperative that you contact us immediately if you wish to
make arrangements to pay this debt prior to additional litigation." Carroll did
not respond to this letter and later filed for bankruptcy.

On May 10, 1991, Carroll sued Wolpoff and Abramson alleging, among other things,
that the June 11, 1990, letter violated section [**3] 1692e(11) of the Fair
Debt Collection Practices Act because it failed to include a warning that the
letter was an attempt to collect a debt and that any information obtained would
be used for that purpose. n3 Although the district court noted that the letter
failed to comply with the notice requirements of section 1692e(11), it granted
summary judgment to the law firm ruling that a follow-up letter need not comply
with these requirements. We disagree.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 Carroll sought actual damages and statutory damages of $ 1,000 pursuant to
15 U.S.C. 1692k.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In 1977, Congress enacted the Fair Debt Collection Practices Act to eliminate
abusive debt collection practices. See 15 U.S.C. 1692a, e. See also Miller v.
Payco-General American Credits, 943 F.2d 482, 483-84 (4th Cir. 1991). Section
1692e states, in pertinent part:

[*461] A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt. Without
limiting the general application of the [**4] foregoing, the following conduct
is a violation of this section:

. . .

(11) . . . the failure to disclose clearly in all communications made to collect
a debt or to obtain information about a consumer, that the debt collector is
attempting to collect a debt and that any information obtained will be used for
that purpose.

15 U.S.C. 1692e (emphasis added). In our view, the language "all
communications" in section 1692e(11) is clear and unambiguous. It makes no
distinction between initial and subsequent communications.

Although Wolpoff and Abramson do not dispute the clarity of the Act's language,
they argue that congressional intent in preventing the abuse of debtors will not
be furthered by requiring the disclosure requirements of section 1692e(11) in
follow-up letters. We simply disagree. Consumers sometimes do not receive first
notices, and thus, follow-up letters may often provide them with their first
notice of the debt collection process. In our view, it follows that requiring
the disclosure requirements of section 1692e(11) in follow-up letters furthers
congressional intent to prevent the abuse of debtors. Although the equities here
are one step removed because [**5] a judgment on the debt preceded the
follow-up letter at issue, there is still a possibility of over-reaching by
creditors. Although over-reaching may occur in only a few circumstances,
"Congress [may] exercise its legislative judgment to adopt a reasonable margin
of safety to insure its remedial goal." Pipiles v. Credit Bureau of Lockport,
Inc., 886 F.2d 22, 27 (2d Cir. 1989).

We recognize that the Ninth Circuit in Pressley v. Capital Credit & Collection
Service, Inc., 760 F.2d. 922, 925 (9th Cir. 1985), relying upon a statement by
Senator Riegle (Michigan) during committee debate, held that follow-up notices
need not comply with the disclosure requirements of 15 U.S.C. 1692e(11). n4 We
cannot agree with the reasoning in Pressley. Senator Riegle's statement was to
the effect that the purpose of the Act was to protect consumers without
unnecessarily restricting ethical collectors. The Pressley court reasoned that
in balancing the two congressional objectives implicit in that statement, the
disclosure requirements of section 1692e(11) need not be included in follow-up
letters. The court in Pipiles correctly reasoned that such an [**6]
interpretive analysis based in the remarks of one senator was strained and that
the end result would be to change the clear and unambiguous language of "all
communications" to "some communications." Id. at 27.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n4 The Pressley court also relied upon informal advisory opinions of the
Federal Trade Commission that the debt collector need not repeat the required
disclosure in subsequent letters. Wolpoff and Abramson point out the FTC's
position. We find the position of the FTC unpersuasive and it is well-settled
that we "need not defer to an agency's construction of its governing statute if
the construction violates an unambiguous statutory command . . . ." Mowbray v.
Kozlowski, 914 F.2d 593, 598 (4th Cir. 1990).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Finally, Wolpoff and Abramson argue that the 1986 amendment to the Act repealing
the attorney exemption, previously codified at section 1692a(6)(F), incorporated
the Pressley decision as well as prior administrative interpretations of the
Act. We cannot agree. While it is true [**7] that re-enactment of statutory
provisions generally incorporate administrative or judicial decisions, this Act
was not re-enacted-rather, part of it was repealed.

Accordingly, we reverse the district court's grant of summary judgment and
remand the case for further proceedings.

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