Judge or Jury? Determining Deception or Misrepresentation Under the Fair Debt Collection Practices Act

This Note explores the conflict among the federal circuit courts as to whether a judge or jury should decide if the language contained in a collection letter is false, misleading, or deceptive to the least sophisticated consumer under the Fair Debt Collection Practices Act (FDCPA). Some circuits, such as the Second and Ninth Circuits, hold that this issue is a question of law, appropriate for the judge to decide. In contrast, the Seventh Circuit finds this to be a question of fact, and requires the plaintiff to submit extrinsic evidence in the form of professional surveys in order to reach the jury. Other circuits, such as the Sixth Circuit, submit close cases under 15 U.S.C. § 1692e of the FDCPA to the jury (without requiring extrinsic evidence), while holding that § 1692g cases are an issue of law. This Note examines the legislative history of and case law relating to the FDCPA and argues that all circuits should treat § 1692g and § 1692e actions consistently, at least when the § 1692e claim is limited to the text of the letter and no other facts are disputed (i.e., the collection letter “speaks for itself”). This Note then argues that policy considerations favor the Second and Ninth Circuits' approach of treating the issue as a question of law because the need for uniform application of a federal statute is paramount. This is especially true in the area of debt collection, because many debt collectors utilize the same collection letters in multiple states. Finally, this Note argues that the Seventh Circuit's requirement that a debtor present extrinsic evidence to survive summary judgment contradicts the purpose of the FDCPA. Because the FDCPA was designed to provide a remedy for citizens of all means, the requirement of producing expensive and time-consuming extrinsic evidence is a needless barrier that thwarts the legislative intent behind the FDCPA