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Media Alerts - Patricia Evankavitch v. Green Tree Servicing, LLC - Third Circuit
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July 20, 2015
  Patricia Evankavitch v. Green Tree Servicing, LLC - Third Circuit
Headline: Third Circuit Holds Party Seeking Benefit of Statutory Exception Under FDCPA Bears Burden of Proof

Area of Law: Fair Debt Collection Practices Act

Issues Presented: Does the debt collector bear the burden to prove its third party communications fit within an exception of the FDCPA?

Brief Summary:

Evankavitch sued Green Tree for violating the Fair Debt Collection Practices Act by reaching out to third parties in order to communicate about her debt. Green Tree argued that its third party communications fell under an exception to the statute, and that it was Evankavitch's burden to disprove that the exception applied. The District Court and the Third Circuit rejected that argument and explained that the exception provides for an affirmative defense and because the debt collector has access to the type of information needed to prove or disprove the claimed exception. Looking to statutory and public policy concerns, the Court determined that the debt collector must have the burden of proof as the party seeking the exception, absent compelling reasons to the contrary.

Extended Summary:

Under the Fair Debt Collection Practices Act ("FDCPA"), a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer's debt unless the communication falls under a statutory exception. One of those exceptions is communication with a third party "for the purpose of acquiring location information about the consumer," but only allows for one such contact, "unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information."

In 2005, Evankavitch took out a mortgage against her property and eventually fell behind on the loan payments. In May 2011, Green Tree Servicing was assigned the mortgagee's rights. Evankavitch used her daughter's phone to make several calls to Green Tree and Green Tree continued to call both Evankavitch and her daughter's phones. Evankavitch instructed Green Tree to stop using her daughter's number to no avail. In August 2012, Green Tree began calling Evankavitch's neighbors, Robert and Sally Heim, and called on at least four separate occasions. After learning of those communications, Evankavtch sued Green Tree for contacting her neighbor in its debt collection efforts.

The jury returned a verdict in favor of Evankavitch and Green Tree appealed. Green Tree argued that the in limine ruling and the jury instructions were improper and that the burden of proof should be on Evankavitch to disprove any exception to the FDCPA. The court reasoned that a party seeking shelter in an exception has the burden to prove its applicability. As such, the debt collector has the burden to show that its actions fell within the exception.

The Court examined the statutory scheme and determined the third party calls were only allowed within the exception and, therefore, the exception was an affirmative defense. In addition, Green Tree had unique access to information in terms of making the calls to third parties and the purpose of those phone calls. The communication is from the debt collector to the third party and the consumer would have no first-hand knowledge of the conversation. The caller is in the best position to generate and maintain records of those communications. The Court determined that, as a matter of common sense, the debt collector would be the only one with the information to invoke or prove the exception.

Looking to policy concerns, the Court explained that saddling consumers with the burden to prove the debt collector's purpose or reasonable belief would cause a violation of privacy that the FDCPA never intended. The Court concluded by stressing that a party seeking shelter in an exception has the burden of proving it unless there are contrary compelling reasons, which were not present here. The District Court's decision was affirmed.

Find the full opinion at:

Panel: Fuentes, Fisher, and Krause, Circuit Judges

Argument Date: December 9, 2014

Date of Issued Opinion: July 13, 2015

Docket Number: No. 14-1114

Decided: Affirmed

Case Alert Author: Jessica Wood


Carlo Sabatini, Esq., Deepak Gupta, Esq., Counsel for Appellee

Barbara K. Hager, Esq., Harry F. Reichner, Esq., David J. Bird, Esq., Counsel for Appellant

Author of Opinion: Krause, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 07/20/2015 12:26 PM     3rd Circuit  

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