## Facts

- Nancy Finley owed a consumer debt.
- By the time collection activity occurred, California’s statute of limitations for filing suit to collect the debt had expired.
- Dynamic Recovery Solutions LLC (Dynamic), a debt collector, was retained to collect the account.
- Finley was represented by an attorney regarding the debt during the relevant period.
- Dynamic was not formally notified that Finley had counsel, though the record included some evidence suggesting Dynamic may have had some awareness of representation.
- Dynamic sent a collection letter directly to Finley rather than to her attorney.
- The letter identified Dynamic as a debt collector, requested payment, and offered to “settle” the account on stated terms.
- Dynamic also placed approximately nine telephone calls to Finley in connection with collection.
- Finley sued Dynamic under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., alleging (among other theories) that Dynamic (1) improperly contacted her despite attorney representation and (2) used false, deceptive, misleading, unfair, or unconscionable means by attempting to collect a time-barred debt without disclosing its unenforceability.
- Dynamic moved for summary judgment.

## Issues

1. Whether Dynamic was entitled to summary judgment on Finley’s claim under 15 U.S.C. § 1692c(a)(2) based on Dynamic’s direct communications with Finley, where Finley had counsel but Dynamic disputed it had actual knowledge of that representation.
2. Whether Dynamic was entitled to summary judgment on Finley’s FDCPA claims under 15 U.S.C. §§ 1692e and 1692f based on a collection letter offering settlement and related calls seeking payment on a concededly time-barred debt, without disclosing that the debt could not be enforced in court.

## Decision

- Dynamic’s motion for summary judgment was **granted in part and denied in part**.
- The court **granted** summary judgment for Dynamic on the **§ 1692c(a)(2)** claim, concluding the evidence did not raise a triable issue that Dynamic **actually knew** Finley was represented by counsel with respect to the debt at the time it communicated with her.
- The court **denied** summary judgment on Finley’s claims under **§§ 1692e and 1692f**, holding that a reasonable jury could find Dynamic’s settlement letter and collection calls on a **time-barred debt** misleading or unfair to the least sophisticated consumer because the communications did not disclose that the debt was no longer judicially enforceable.

## Legal Principles

- FDCPA claims under **§ 1692e** (false, deceptive, or misleading representations) are evaluated under the **least sophisticated consumer** standard, focusing on the overall impression created by the communication.
- An attempt to collect a **time-barred** debt may violate **§ 1692e** and/or **§ 1692f** when the communication could cause a consumer to believe the debt remains legally enforceable, especially where the collector seeks payment or proposes a “settlement” without clarifying that suit is time-barred.
- A “settlement” offer can be actionable under the FDCPA if, in context, it implies a legal obligation that can be enforced in court when that is not true.
- Under **15 U.S.C. § 1692c(a)(2)**, a debt collector may not communicate with a consumer about the debt if the collector **knows** the consumer is represented by an attorney and can readily ascertain the attorney’s contact information; the statute requires **actual knowledge**, not merely that the collector should have known.
- Summary judgment is proper when the nonmoving party lacks evidence sufficient for a reasonable factfinder to decide an essential element in that party’s favor (such as the collector’s actual knowledge under § 1692c(a)(2)), and improper when the record would allow a reasonable jury to find the challenged communication misleading under the FDCPA.

## Conclusion

In Finley v. Dynamic Recovery Solutions LLC, the court granted Dynamic summary judgment on the claim that it unlawfully contacted a represented consumer because Finley did not produce evidence that Dynamic actually knew she had counsel, but the court denied summary judgment on Finley’s claims that Dynamic’s settlement letter and follow-up calls could mislead the least sophisticated consumer into believing a time-barred debt was still enforceable, allowing the §§ 1692e and 1692f theories to proceed.


Finley v. Dynamic Recovery Solutions LLC, 2015 WL 3750140 (2015)