UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C.
20580
Division of Credit Practices
Bureau of Consumer Protection
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November 6, 1992
Mr. Paul A. Borowski
Compliance and Standards Manager
National Recovery Systems, Inc.
301 Missouri Avenue
Clearwater, Florida 34616-5833
Dear Mr. Borowski:
This is in response to your request for a staff opinion concerning
checks returned for insufficient funds on a joint account held
by two parties who are not spouses and who have two different
last names. A check drawn on a joint account requires the signature
of only one of the joint owners. Such a check (signed by one of
the owners) is returned for insufficient funds. You ask whether
a debt collector, when collecting on the check, may properly contact
the other joint account holder and discuss the debt without violating
the Fair Debt Collection Practices Act ("FDCPA"). I
assume that the collector is attempting to collect the amount
of the bad check only from the joint account holder who actually
executed the check.
Section 805(b) of the FDCPA provides:
Except [for attempts to locate the consumer], without
the prior consent of the consumer given directly to the debt
collector, or the express permission of a court of competent
jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection
with the collection of any debt, with any person other than
the consumer, his attorney, a consumer reporting agency if otherwise
permitted by law, the creditor, the attorney of the creditor,
or the attorney of the debt collector.
Under the FDCPA, the term "communication" means "the
conveying of information regarding a debt directly or indirectly
to any person through any medium." For purposes of Section
805 the term "consumer" includes the consumer's spouse,
parent (if the consumer is a minor), guardian, executor, or administrator.
The Act defines a consumer "as any person obligated . . .
to pay any debt."
In my opinion, contact by the debt collector with the joint account
holder who did not execute the bad check would not violate the
FDCPA. The restriction imposed by Section 805(b) on communicating
with third parties is intended to prevent unscrupulous debt collectors
from embarrassing consumers and invading their privacy by revealing
the existence of their debt to friends, neighbors or other third
parties who do not already know of the debt. In the situation
described by you, both parties are owners of the joint account,
and presumably both agreed that each could sign checks independently.
Further, in the event of a check returned for insufficient funds,
both parties would probably be notified of the returned check,
and both would clearly be aware (or entitled to be aware) of the
returned check when receiving the bank statement at the end of
the month. Finally, the joint nature of a joint checking account
implies that what happens in the account is the business of the
joint owners and that each is obligated for whatever commitments
the other makes with respect to the account. At some point both
parties to the account will be aware of the debt and contact by
the collector will reveal nothing that is not already known or
soon will be known to each party to the joint account. Therefore
the potential mischief which Section 805(b) was designed to curb
does not exist.
The views expressed represent informal staff opinion. As such,
they are not binding on the Commission. They do, however, reflect
the staff's current enforcement policy.
Sincerely,
Roger J. Fitzpatrick
Attorney
Division of Credit Practices
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