FDCPA and Those Calls to Clients

In 2007, Ohio replaced its Code of Professional Conduct with the Ohio Rules of Professional Conduct.  I was almost certain that a "Servicer" contacting the client during litigation violated the new ethical rules.  Today, when another client called distraught over receiving a telephone call from the "Servicer", I decided I needed to review the Rules again.  Turns out that Rule 4.2 comment [4] actually allows such contact between the clients.

4.2 Comment [4]Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.

Upon further reflection, I had to question whether the contact was from a party to the litigation.  Since it was from the Servicer and not the Plaintiff this was not communication by a party.

I then reviewed the Ohio Consumer Protection Acts, and could not find any prohibition against clients being contacted directly by debt collectors.  I then turned to the Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. §§ 1692-1692p.

I believe that the "servicer" would be a debt collector, and the FDCPA prohibits debt collectors from contacting consumers who are represented by counsel.  I did not see any definition of consumer which rendered the FDCPA inapplicable to mortgage debt.  Further, the cases that I reviewed involving FDCPA did not apply the statute to the Lender as it was collecting its own debt.  However, when a 'servicer" contact the client, it may be a debt collector because it is not an affiliate of the Lender.  A Lender that originated the loan only to immediately sell the loan and retain the "servicing rights" would be a debt collector.

The FDCPA prohibits a debt collector from directly contacting a consumer who is represented by counsel. 

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the col­lection of any debt—

if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowl­edge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; 15 U.S.C. 1692c.

The FDCPA provides civil damages up to $1,000 plus attorney fees.  I think it may be a good point of practice to advise opposing counsel to inform Plaintiff's "servicer" that it is not to directly communicate with the client.  This may avoid some aggravation for the client.  When the servicer contacts the Homeowner despite the requested warning, the servicer may be liable for civil damages under teh FDCPA.  Since the driving force behind many foreclosures seems to be the money that "servicers" make such a FDCPA claim may provide some leverage to thos erepresenting Homeowners Facing Foreclosure.

I am certain that many others have already thought of this and are (1) successfully using it or (2) are aware of the downfall of this strategy and avoid it.  I would ask for those reading this with experience on the issue reply and educate me accordingly.