We previously addressed the Evon case oral argument here: http://www.calautofinance.com/?p=2563&preview=true&preview_id=2563&preview_nonce=86a7e87b16. The Court of Appeals issued its ruling yesterday. In Evon v. Law Offices of Mickel, here, the Court of Appeals for the Ninth Circuit found deceptive the practice of sending collection letters to the debtors at their employer’s address.
Next, even if Mickell assumed that some debtors receive mail at their place of employment, it is not reasonable for Mickell to assume that all debtors’ mail so received remains unopened and unseen before reaching the debtor. As a lawyer in the business of debt collecting, Mickell should have known of the real possibility that a letter to a debtor’s place of employment, even one marked “Personal and Confidential,” would be viewed by someone other than the debtor. Finally, the return address on the envelope was from the “Law office of Sidney H. Mickell.” Any person handling Evon’s mail would therefore know that Evon was receiving legal mail, a fact many people would prefer be kept private. Other than holiday greetings, correspondence from an attorney’s office rarely relays good news and often communicates information that can be embarrassing or even frightening to the recipient. As the Senate Report noted, disclosing a consumer’s personal affairs to his or her employer is a form of collection abuse. The Act was explicitly intended to protect consumers from these types of communications. ¶ The Federal Trade Commission (FTC) Commentary prohibits this type of conduct. In its Staff Commentary, the FTC states: Accessibility by third party. A debt collector may not send a written message that is easily accessible to third parties. For example, he may not use a computerized billing statement that can be seen on the envelope itself. A debt collector may use an “in care of” letter only if the consumer lives at, or accepts mail at, the other party’s address. Staff Commentary, 53 Fed. Reg. 50097-02 (Dec. 13, 1988) (emphasis added). Although not dispositive, the FTC’s Commentary is illustrative of the types of permissible and impermissible conduct. Moreover, Mickell conceded that he had Evon’s home address. He just didn’t want to use it. As he testified at his deposition, Mickell “believed that a letter at work that is received during the day when people were awake and when people are in a business mode and my office is open, is more conducive to a successful commnication” with the debtor. That may be true in some instances; perhaps some debtors would prefer to receive debt collection letters or phone calls at their place ofemployment. The Act allows debt collectors to contact these debtors; the debtor however needs first to give his or her consent. Mickell admitted that he had no practice or policy in place to inquire whether a debtor consents to receiving mail at work. He took a chance that his conduct would not run afoul of the Act. “[O]ne who deliberately goes perilously close to an area of proscribed conduct [takes] the risk that he may cross the line.” FTC v. Colgate-Palmolive, Co., 380 U.S. 374, 393 (1965) quoting Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 340 (1952)). Here, Mickell’s conduct crossed the line.
The Court of Appeals found no issue with the conditional nature of the letter itself as to a ‘threat of lawsuit’, explaining:
Here, the statement does not say that legal action “will result in a judgment against you,” which would come much closer to the language held by the court in Schimmel to appear to be a “virtual certainty” but rather says that legal action “ could result in a judgment against you.” (Emphasis added). Use of the conditional language in this instance is appropriate, accurate, and not misleading.
The Court of Appeals also addressed the issue of a threat of garnishment, explaining:
The court rejected the debt collector’s argument that “all wages, property, and other financial assets” could be reasonably understood to mean only “some wages, property, and other financial assets” and that as written, the statement misrepresented the breadth of the garnishment and attachment statutes. Id. at *8. Here, Evon argues that the letter fails to include language to make it clear that only a certain portion of a debtor’s wages can be garnished7 and that certain types of property, specified in Cal. Code. Civ. P. §§ 704.010, are exempt from judgment executions and cannot be levied upon.8 Evon argues that here, like the statement at issue in Oglesby, ganishment of all wages, levies of all bank accounts and/or attachment of all assets is unavoidable once court action has been initiated — an end result which could not lawfully happen.” But the statement Evon complains of does not say “all” and her argument is an attempt to read that word into the language of the letter. Section 1692e prohibits only “false, deceptive, or misleading” representations. While the letter could have included additional clarifying language, we do not believe that the language of the letter goes so far as to be considered false, deceptive, or misleading. Accordingly, the district court did not err in denying Evon’s motion for partial summary judgment with respect to liability on this claim.