In Francisco v. Midland Funding, LLC, No. 17 C 6872, 2019 U.S. Dist. LEXIS 42349 (N.D. Ill. Mar. 15, 2019), Judge Lefkow held that unclean hands are not an affirmative defense to an FDCPA section 1692e(8) claim even where the debtor’s attorney allegedly timed the dispute letter to coincide with the debt collector’s bi-monthly credit reporting.
Because the unclean hands defense focuses exclusively on “the plaintiff’s fault,” Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1021 (7th Cir. 2002) (quoting Shondel v. McDermott, 775 F.2d 859, 868 (7th Cir. 1985)), the court joins several district courts across the country and holds that unclean hands is not an affirmative defense to a violation of § 1692e of the FDCPA. Nyberg v. Portfolio Recovery Assocs., LLC, No. 3:15-cv-01175-PK, 2016 U.S. Dist. LEXIS 71897, 2016 WL 3176585, at *6 (D. Or. June 6, 2016) (“[U]nclean hands is not a proper defense to an FDCPA claim.”);5 Mejia v. Marauder Corp., No. C06-00520 HRL, 2007 U.S. Dist. LEXIS 21313, 2007 WL 806486 at *5 (N.D. Cal. Mar. 15, 2007) (citing Howlett v. Rose, 496 U.S. 356, 372, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990)) (holding state-law unclean hands not defense to federal FDCPA claim); Johnson v. Nationstar Mortg., LLC, No. 2:17-cv-199-FtM-99MRM, 2017 U.S. Dist. LEXIS 137454, 2017 WL 3705838, at *3 (M.D. Fla. Aug. 28, 2017) (“The Court does not see—and defendant cites no case law in support—how a debt collector may defend itself from liability for its practices by alleging that the debtor put the parties in the situation in the first place.”). Though other courts have entertained unclean hands as a defense, most of them were not squarely presented with the propriety of the defense and, to this court’s knowledge, no court has ever allowed an unclean hands defense to defeat an FDCPA claim. See Sartori v. Steider & Assocs., P.C., No. 1:15-cv-00991-JCH-LF, 2017 U.S. Dist. LEXIS 18803, 2017 WL 3602029, at *3 (D.N.M. Jan. 19, 2017) (denying motion to strike “based on [plaintiff’s] erroneous claim that there are only three defenses available in an FDCPA case”); Gater v. Russel Collection Agency, Inc., No. 15-10033, 2015 U.S. Dist. LEXIS 152149, 2015 WL 6955402, at *4 (E.D. Mich. Nov. 10, 2015) (rejecting [*7] unclean hands defense because defendant did not prove it, without discussing propriety of defense); Young v. LVNV Funding, LLC, No. 4:12CV01180AGF, 2013 U.S. Dist. LEXIS 9396, 2013 WL 275603, at *1-2 (E.D. Mo. Jan. 24, 2013) (denying motion to strike unclean hands defense as premature without discussion of propriety); Raymond v. CACV of Colo., LLC, No. CV-06-1988-PHX-FJM, 2007 U.S. Dist. LEXIS 12524, *4-5 (D. Ariz. Feb. 20, 2007) (entertaining possibility that consumer’s conduct is immaterial but not striking unclean hands defense because court was “aware of no binding authority that would require such a sweeping conclusion”). Perez v. Gordon & Wong Law Group, P.C. most thoroughly evaluated the propriety of unclean hands without finding it improper, but that decision is nonetheless consistent with this one. No. 11-CV-03323-LHK, 2012 U.S. Dist. LEXIS 41080, 2012 WL 1029425, at *9 (N.D. Cal. Mar. 26, 2012). There, the court held that the enumeration of three affirmative defenses in § 1692k does not preclude the application of other defenses not listed. Id. (citing Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1168-70 (9th Cir. 2006) (holding waiver is affirmative defense to some FDCPA violations)). But the court clarified that it “in no way suggest[ed] that every conceivable defense may be asserted appropriately in an FDCPA action.” Id. Rather, those non-enumerated defenses had to be “consistent with both the statute’s plain language and its stated policy goals . . . .” Id. Because [*8] the debt collector in Perez did not allege any facts to support its unclean hands defense, the court dismissed it for failure to state a claim without needing to decide whether the defense was consistent with the FDCPA. 2012 U.S. Dist. LEXIS 41080, [WL] at *10. This court does not foreclose the possibility that the FDCPA permits debt collectors to raise other defenses that are not listed in § 1692k. But unclean hands is inconsistent with the policy underlying the Act. Permitting a debt collector to commit FDCPA violations when the consumer’s counsel might have contrived the violation (or the consumer is otherwise unworthy in equity) would impermissibly shift the focus back toward the consumer’s wrongdoing, which the text, structure, and history of the FDCPA do not allow. Allowing an unclean hands defense would transform the rule from “Debt collectors may not make false claims, period,” to “Debt collectors may not make false claims, comma.” Randolph, 368 F.3d at 730. If the debt collector could probe the consumer’s or counsel’s actions for unclean hands, FDCPA litigation would devolve into disputes over the plaintiff’s and counsel’s actions and motivations, even where, as here, the FDCPA violation is clear. (Dkt. 74 at 9-10.) Debt collectors could mire the consumer in discovery irrelevant to the violation, making litigation costlier. And allowing counsel’s actions and motivations to prevent recovery for FDCPA violations could also chill counsel from taking steps to root out violations, hindering one of the FDCPA’s key enforcement mechanisms. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577, 130 S. Ct. 1605, 176 L. Ed. 2d 519 (2010) (“The Act is enforced through administrative action and private lawsuits.”). Because Congress did not intend FDCPA litigation to focus on the consumer’s wrongdoing, the FDCPA does not permit an unclean hands defense. Finally, although Congress does not want courts probing into the consumer’s actions or intentions to determine the debt collector’s liability, it also installed a safety valve against truly abusive litigation.