In Offril v. J.C.Penney, Inc., 2009 WL 69344 (N.D.Cal. 2009), Judge Hamilton held that notice by a consumer to a creditor that it was represented by counsel did not, for purposes of the FDCPA, constitute notice to the collection agency hired by the creditor to collect the debt. Judge Hamilton explained:
Although plaintiff did not allege or argue that JC Penny’s actual knowledge of Berg’s representation of plaintiff is imputed to Nationwide, Nationwide argued against this theory citing appropriate authority in support of its position. Based on that authority, the court finds that JC Penny’s actual knowledge of Berg’s representation of plaintiff cannot be imputed to Nationwide. See Gorman v. Wolpoff & Abramson, LLP, 435 F.Supp.2d 1004, 1011 (N.D.Cal.2006) (citing Randolph v. IMBS, Inc., 368 F.3d 726, 729-30 (7th Cir.2004) (holding that collection agency’s letter to debtor who was represented by counsel did not violate FDCPA, since collection agency did not know debtor was represented by counsel, even if creditor’s files contained information that she was, because a creditor’s knowledge is not imputed to collection agency); Schmitt, 398 F.3d at 997-98, (holding that a creditor’s knowledge that the consumer is represented by counsel is not imputed to the debt collector under the FDCPA; noting that imputing a creditor’s actual knowledge of a debtor’s representation to the debt collector “contradicts established agency law, which dictates that while the knowledge of the agent is imputed to the principal, the converse is not true”)).