In Jackin v. Enhanced Recovery Co., LLC, No. 2:21-cv-00234-SMJ, 2022 U.S. Dist. LEXIS 104273, at *5-6 (E.D. Wash. June 10, 2022), Judge Mendoza adopted the Hunstein analysis in determining whether debt collectors can share consumer debt-related information with commercial mail vendors.
Upon review of the record, the Court finds that Plaintiff has adequately alleged a violation of 15 U.S.C. § 1692c(b) and has therefore plausibly stated a claim against Defendant. Section 1692c(b) broadly prohibits debt collectors from “communicat[ing] with third parties in connection with a consumer’s debt.” Nichols v. GC Servs., LP, No. CV-08-01491-PHX-FJM, 2009 U.S. Dist. LEXIS 100041, 2009 WL 3488365, at *3 (D. Ariz. Oct. 27, 2009). While this prohibition is subject to several carefully defined exceptions, the statute does not explicitly provide an exception for commercial mail vendors. The single question before this Court, then, is whether the FDCPA nonetheless exempts from liability debt collectors who transmit consumer debt-related information to mail vendors. Upon review of the record and the relevant legal authority, the Court finds that in enacting the FDCPA, Congress used language that, on its face, bars debt collectors from communicating consumer-debt related information to mail vendors. As such, “the Court must assume that Congress meant what it said, and it will enforce the statute that way.” Khimmat v. Weltman, Weinberg & Reis Co., LPA, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *1 (E.D. Pa. Feb. 7, 2022).
Judge Mendoza explained
If the Court were to adopt Defendant’s proposed meaning, § 1692c(b)’s “with any person other than” clause would be unintelligible. Hunstein v. Preferred Collection & Mgmt. Servs., 17 F.4th 1016, 1034 (11th Cir.), reh’g en banc granted, opinion vacated, 17 F.4th 1103 (11th Cir. 2021); see also Khimmat, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *3. For these reasons, the Court finds that Defendant’s transmission of Plaintiff’s debt information to RevSping, whether passive or not, constitutes a communication as defined under the FDCPA. . . .And to be sure, even if the Court were to find an agency relationship, Defendant ignores an obvious problem the statutory text poses to their argument. Section 1692c(b) provides six exceptions to the general prohibition on debt collectors communicating with others in connection with a debt. See generally 15 U.S.C. 1692c(b). “Three of these exceptions are for attorneys, who have an agency relationship with their clients.” Khimmat, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *4. It makes little sense for Congress to expressly exempt some agents if Congress did not intend that statute’s prohibition to generally apply to agents unless a specific exemption applied. Otherwise, Congress would not have specifically exempted attorneys in the text of the statute. “And by specifying some, the doctrine of expressio unius est exclusion alterius teaches that Congress intended to exclude other agents from the exemption.” Khimmat, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *4 (emphasis in original). . . . Finally, Defendant proffers that “[t]he FTC and CFPB have approved collectors’ use of outside vendors to send collection communications.” ECF No. 6 at 10. In support, Defendant notes that FTC Staff Commentary (“Commentary”) on the FDCPA indicates that a collector’s agent may give a consumer notice of debt, so long as it is clearly indicated that the notice is on behalf of the debt collector. ECF No. 6 at 10; see also Statements of General Policy or Interpretation Staff Commentary On the Fair Debt Collection Practices Act, 53 FR 50097-02, 50108. The Commentary provides similar support for incidental contacts with a telephone operator or a telegraph clerk. Id. at 50104. Again, though, the Court cannot conclude that Defendant and RevSpring are in an agency relationship. And telephone operators and telegraph clerks work for “wire-based, regulated entities,” which are fundamentally different from mail vendors. Khimmat, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *6. Moreover, providing an entity with specific details concerning a consumer’s debt is more than incidental contact and clearly distinguishable from the minimal contact endorsed in the Commentary. Lastly, Defendant suggests that because the FTC has not taken enforcement action against debt collectors who outsource to mail vendors, it must approve of the practice. But even if it were true that the lack of enforcement action was implicit approval, rather than merely a reflection of the agency’s limited resources and enforcement priorities, its enforcement practices are not dispositive of the Court’s interpretation and carry little weight. Defendant’s reliance on CFPB guidance is similarly unavailing. Here, too, Defendant makes much of the fact that the CFPB has not expressed concern over debt collectors using mail vendors. See ECF No. 6 at 12. Again, the Court will not opine on the CFPB’s regulatory priorities and will certainly not assume from its inaction in this area that it supports the practice. Defendant also submits that the CFPB has approved of a debt collector disclosing a vendor’s mailing address if the vendor accepts disputes and requests for original-creditor information. Id. But providing a vendor’s mailing address is clearly different from providing a consumer’s debt information. And “[a] debt collector receiving information from a consumer through a letter vendor is not the same as a debt collector communicating information to or through a letter vendor.” Khimmat, No. 2:21-CV-02944-JDW, 2022 U.S. Dist. LEXIS 21076, 2022 WL 356561, at *5. For these reasons, the guidance cited by Defendant does not directly bear on the legal issue involved here and the Court declines to treat the FTC’s and CFPB’s actions as dispositive.