Peter Smythe, P.C.

Gon­za­les v. Kay and Kay Law Firm, No. 0 – 20544 (5th Cir. August 3, 2009) (Jolly, Prado, and Southwick)

Jose Gon­za­lez fai­led to pay his Sprint PCS Wire­less cellphone bill and he recei­ved a collec­tion let­ter from the Kay Law Firm. The let­ter was prin­ted on the firm’s let­terhead, but was not sig­ned. It con­tai­ned all the regu­lar Fair Debt Collec­tion Act (“FDCA”) lan­guage on the front, but had this disc­lai­mer on the back:

At this point in time, no attor­ney with this firm has per­so­nally revie­wed the par­ti­cu­lar cir­cums­tan­ces of your account.

Gon­za­les filed suit, essen­tially arguing that the Kay Law Firm wasn’t actually a law firm at all, but ins­tead a debt collec­tion agency that used the impri­ma­tur of a law firm to inti­mate deb­tors into paying. Kay filed a Rule 12b(6) motion and the dis­trict court gran­ted it on the basis of the disc­lai­mer on the back of the collec­tion letter.

The Fifth Cir­cuit rever­sed. The court obser­ved that the Second Cir­cuit had upheld a dis­mis­sal of a FDCA claim with simi­lar facts, but dis­tin­guished the case on the fact that the attor­ney disc­lai­mer was on the front of the collec­tion let­ter and not the back. The court sur­mi­sed that the backhan­ded way the disc­lai­mer was pre­sen­ted to Gonz­les could ren­der the let­ter decep­tive. The court reman­ded the case to the dis­trict court and gave collec­tion law­yers the follo­wing admonishment:

We cau­tion law­yers who send debt collec­tion let­ters to state clearly, pro­mi­nently, and cons­pi­cuously that although the let­ter is from a law­yer, the law­yer is acting solely as a debt collec­tor and not in any legal capa­city when sen­ding the let­ter. The disc­lai­mer must explain to even the least sophis­ti­ca­ted con­su­mer that law­yers may also be debt collec­tors and that the law­yer is ope­ra­ting only as a debt collec­tor at that time.

A copy of the Gon­za­les opi­nion can be had here: Gon­za­les.

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