7th Circuit holds, without written appearance by attorney, law firm did not violate FDCPA by serving debtor directly

Courts Seventh Circuit Debt Collection FDCPA

On August 21, the U.S. Court of Appeals for the 7th Circuit held that a law firm did not violate the FDCPA by serving a debtor a default motion because his attorney had not yet become the “attorney of record” under Illinois Supreme Court Rule 11 (Rule 11). According to the opinion, after being sued by the law firm on a creditor’s behalf, the debtor appeared pro se and later retained an attorney to represent her. The law firm moved for summary judgment and served the motion to the debtor and to the debtor’s new attorney, who had not yet filed a written appearance. The debtor alleged the law firm violated the FDCPA by contacting her while represented by counsel. The lower court entered summary judgment in favor of the debtor. Disagreeing with the lower court, the 7th Circuit reversed, finding that Rule 11 gave “‘express’ judicial ‘permission’ to serve the default motion directly on [the debtor]” from “a court of competent jurisdiction” as required by the FDCPA— which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” ." The panel noted that Illinois precedent makes it clear that under Rule 11, a lawyer can only become an attorney of record by filing a written appearance or other pleading with the court. Because a written appearance had not yet been made, the panel reasoned, Rule 11 expressly permitted the law firm to serve the debtor directly and therefore, the firm did not violate the FDCPA.