In Evankavitch v. Green Tree Servicing, LLC, 2015 WL 4174441 (3d Cir. 2015), the Court of Appeals for the Third Circuit found that a debt collector bears the burden of proving that its communications with third parties were permitted attempts to confirm or correct location information. The 3rd Circuit stated that communications with third parties to obtain location information are an exception to prohibited communications with third parties, and, therefore, the debt collector must bear the burden on that subject.
None of our sister Circuits has yet addressed the question whether the consumer has the burden of disproving this exception as part of its case-in-chief, or whether the debt collector carries the burden of proving the exception as an affirmative defense, and the district courts have taken divergent approaches. . .Here, § 1692c(b) states that “[e]xcept as provided in section 1692b … a debt collector may not communicate, in connection with the collection of any debt, … [with third parties].” 15 U.S.C. § 1692c(b). . .In the case of the FDCPA, no reference to the Act’s exceptions is necessary to discern that calls to third parties in pursuit of collecting a consumer’s debt are prohibited. Instead, what constitutes a violation is apparent from the plain language of § 1692c(b). Thus, we find no compelling reason to reverse the “longstanding convention” that a party seeking shelter in an exception—here, the debt collector—has the burden to prove it. Meacham, 554 U.S. at 91.
The 3rd Circuit suggested that the debt collector must, therefore, plead as an affirmative defense that any communication with a third party was a permitted “location information” communication.
Another factor for our consideration in categorizing an exception as an affirmative defense is the need to avoid unfair surprise and undue prejudice. . . .The exception we consider here stands in stark contrast. If a debt collector acknowledges that it made a generally prohibited call, but contends it did so based on a purpose or reasonable belief that would exempt it from liability, a diligent consumer will need to explore the debt collector’s knowledge and intent. Thus, a consumer faced with the assertion that a call was made pursuant to the FDCPA’s location-information exception would reasonably change her discovery and trial strategy to prove that the debt collector was not seeking location information, or, in a follow-up call, did not have a reasonable belief that the earlier information was incorrect and likely to be corrected. Accordingly, considerations of unfair surprise and undue prejudice also counsel in favor of finding that § 1692b is an affirmative defense. . . .We started our analysis with the default rule that a plaintiff bears the burden of proving her claim, but we end with the canon that, absent compelling reasons to the contrary, a party seeking shelter in an exception to a statute has the burden of proving it. We find no such compelling reasons in this case. Accordingly, we conclude that the District Court’s jury instructions and in limine ruling properly placed the burden of proof on Green Tree, and we will affirm.