Does Serving a Summons Trigger the FDCPA's Validation Notice Obligation?

by Jeff Sovern

Earlier this month, Richard Alderman blogged about the amendments to the Fair Debt Collection Practices Act that have since been signed into law.   In particular, he noted that one of the provisions amends § 1692g, the validation provision, to add a new subsection(d) which provides that a “communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).”  The effect  is to provide that attorneys serving a complaint need not provide the validation notice because the obligation to supply the validation notice is triggered by “the initial communication.”  OK, that's it for complaints.  But complaints are often accompanied by a summons.  Does the exception include a summons?  A summons is not usually thought of as a pleading, much less a “formal pleading,” and the definition of “pleadings” in Federal Civil Rule 7(a) does not include a summons.  The FDCPA does not define “pleadings.”  It would make little sense to have an exception for complaints and not a summons, and yet that seems to be where the text of the statute takes you.

The issue arises only if a summons is an initial communication.  Before the recent amendment, courts had split on whether a complaint qualified as an initial communication.  Compare Vega v. McKay, 351 F.3d 1334 (11th Cir. 2003) with Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004).   Communication is defined in the statute as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  A plain meaning interpretation would, it seems to me, regard a summons as a document that communicates information.  I suppose it could be argued that the summons in a suit based on a debt conveys the information that a case has been commenced rather than information about a debt, but this strikes me as a stretch, especially given the word "indirectly."   

If an attorney did include a validation notice with the summons, might the summons overshadow the validation notice?  See In re Martinez, 266 B.R. 523 (B.S.D.Fla.), aff’d, 271 B.R. 696 (S.D.Fla. 2001), aff’d 311 F.3d 1272 (11th Cir. 2002).  Another interesting feature of the statute is that it codifies the overshadowing rule, in a new last sentence of § 1692g(b).

Comments

[Jennie]

When a complaint and summons are served to the debtor, this is usually the first step in the proceedings. The first notification their is a pending law suit. On the complaint and summons should be a notice stating the debtor has a time frame to respond to the attorney/creditor and the county clerks office stating if the debt is a valid debt. It is then up to the debtor to respond or not to respond. The next step for the attorney is to set a court hearing. This is for them to attempt to obtain a judgment. The judgment is what allows the creditor to pursue further action, such as garnishment of wages, lien on property and/or bank levy. Depending on state laws will determine what they can and can not do. IF a creditor goes this route, it is not the end of the world. The attorney/creditors are usually still willing to work out an agreement, whether it be a settlement or a payment plan reasonable for the debtor. If an agreement is reached, the court hearing is usually postponed and they reconvene on it after the agreement is fullfilled. If you are behind on your bills it is possible for a creditors to go this route. As a consumer you should look into all of your options for help, there is debt settlement, debt roll down and debt validation. With a little bit of research you can find the best program for you.