In Arias v. Gutman, Mintz, Baker & Sonnenfeldt, LLP, 2017 WL 5330081 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit did not adopt the argument adopted by other courts that the FDCPA’s “general” prohibitions cannot provide an additional basis for liability when there already is a “specific” prohibition set forth elsewhere in the FDCPA.
Franklin Arias claims that Gutman, Mintz, Baker & Sonnenfeldt LLP (“GMBS”), a law firm, violated the Fair Debt Collection Practices Act (“FDCPA”) and New York State law when it garnished his bank account and then tried to block him from showing that all of the funds in his account were exempt from garnishment. . . .GMBS argues that sections 1692e and 1692f are mutually exclusive and that the same conduct by a debt collector cannot violate both sections at once. We disagree. See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 82, 87 (2d Cir. 2015) (affirming certification of a class alleging that the same scheme violated sections 1692e and 1692f). Each section primarily targets a different type of misconduct, even as both sections share the goal of protecting consumers from abuse by debt collectors. Section 1692e mainly targets practices that take advantage of a debtor’s naivete or lack of legal acumen. Section 1692f, meanwhile, is aimed at practices that give the debt collector an unfair advantage over the debtor or are inherently abusive. “[A] collection practice could be unfair without necessarily being deceptive,” Currier, 762 F.3d at 534, could be deceptive without being unfair, or could be both deceptive and unfair, see id. at 536 (sections 1692e and 1692f are “broad, potentially overlapping, and are not mutually exclusive”); LeBlanc, 601 F.3d at 1193, 1202 (allowing claims under sections 1692e and 1692f to proceed based on the same conduct); McMillan v. Collection Prof’ls Inc., 455 F.3d 754, 760 (7th Cir. 2006) (same); Duffy v. Landberg, 215 F.3d 871, 874–75 (8th Cir. 2000) (same). Consider, for example, section 1692f(7), which deals specifically with communicating with a consumer about a debt by postcard. A debt collector who communicates with a debtor by postcard containing a representation that is “false, deceptive, or misleading” to the least sophisticated consumer can violate both section 1692f(7) and section 1692e. In any event, here GMBS is alleged to have violated each section based on different conduct: section 1692e based on the false statements made in GMBS’s affirmation, and section 1692f based on GMBS’s objection to Arias’s exemption claim when it allegedly knew there was no legally sufficient basis to do so.