In Siwulec v. J.M. Adjustment Services, LLC, 2012 WL 666649 (3d Cir. 2012), the Court of Appeals for the Third Circuit found that a Bank’s “door knock” service was subject to the FDCPA, and was not a mere delivery service of letters for the Bank. The allegations were as follows:
On about May 10, 2010, Siwulec, a resident of Rumson, New Jersey, was visited at her residence by a representative of J.M. Adjustment Services, LLC (“JMAS”) and handed an envelope containing a letter from Chase, her lender. The letter sought information from Siwulec to assist Chase in “resolv[ing]” a home mortgage loan that Chase alleged was “past due.” Appellant alleged that the information requested by the letter was to be used to collect her outstanding debt. Siwulec notes that the home mortgage loan was obtained for personal, family or household purposes to pay for a residence, and was not a loan secured for business purposes. ¶ After accepting the letter from JMAS’ field agent, Siwulec noticed that the agent had dropped additional documents on her lawn. She claimed that the dropped or discarded documents contained standard instructions and procedures provided by JMAS to its agents. Siwulec also asserted that at no point during the interaction between herself and JMAS’ agent was she provided with any of the disclosures required by the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. §§ 1692g, 1692e(11) (mandating that debt collectors disclose original creditor, details of debt, and fact that any information provided will be used to collect debt). Finally, she highlighted that on its website, JMAS claimed to be in “Full compliance with FDCPA and [Gramm–Leach–Bliley Act] requirements.”
The Court of Appeals found that these allegations triggered the FDCPA.
The District Court’s second logical error is perhaps more troubling. In determining whether JMAS is an indirect debt collector, it focused almost exclusively on the actions that Siwulec alleged JMAS took with respect to her, although the statutory definition of debt collector turns on “the principal purpose” of a business and/or the “regular[ ] collect[ion] of debts.” 15 U.S.C. § 1692a(6).FN2 The District Court noted that the JMAS representative is alleged to have taken just two actions with respect to Siwulec: the delivery of the letter and the dropping of the instructions on her lawn. (App.24.) It noted that Siwulec had not alleged that JMAS “sought or obtained [ ] information about her property or her personal contact information, or that JMAS conveys such information to lenders.” ( Id. at 25.) It then concluded that “the alleged delivery of the Chase letter would be nothing more than messenger service” and that JMAS therefore did not fall within the purview of the FDCPA. ( Id. at 26–27.) ¶ Siwulec alleges much more with regard to the principal purpose of JMAS’s business than its actions with respect to her. Her complaint includes statements from JMAS’s website promoting its services to debt collectors and advertising its compliance with the FDCPA. She also includes the text of the instructions dropped on her lawn, which make clear that JMAS contracted with Chase to gather information both from alleged debtors and through its own on-site investigation of their properties. These allegations are well-pled and we must accept them as true. Santiago, 417 F.3d at 386. ¶ Given the facts as alleged, JMAS is no mere messenger service for debt collectors. Compare Udis v. Universal Comms. Co., 56 P.3d 1177 (Colo.Ct.App.2002) (finding Romine persuasive on interpretation of Colorado’s analogous FDCPA and holding that a company that markets its services gathering debtor contact-information to debt collectors is covered by the Act) with Laubach v. Arrow Serv. Bureau, Inc., 987 F.Supp. 625, 631–32 (N.D . Ill.1997) (holding that printing and mailing of collection letters on behalf of debt collector did not render mailing company debt collector for FDCPA purposes). In addition to delivering letters, JMAS representatives are instructed to urge alleged debtors, in person, to call the creditor while they watched. They were to gather contact information from the debtors directly, to speak with their neighbors, and to conduct a visual assessment of their properties. These activities bring JMAS out of any messenger exception and into the coverage of the FDCPA, which was certainly intended to regulate in-person debt collection visits.