On February 1, 2022, Mr. Hunstein filed the last brief he can file before the Eleventh Circuit Court of Appeals will hear oral Arguments in Atlanta on February 22, 2022 in the case of Hunstein vs. Preferred Collection & Management Services, Inc, 994 F.3d 1341 (11th Cir. 2021). The brief was filed as a reply to Preferred’s January 18, 2022 brief, in which it urged the Eleventh Circuit to uphold the dismissal of the case entered by the District Court.
For a recap of how we got here, see this article.
In his brief, Mr. Hunstein argued:
The letter vendor was a separate company from preferred, and therefore not Preferred’s agent.
Any data transmission to an entity not explicitly listed in the FDCPA is prohibited; otherwise, debt collectors could label anyone their agent, and the definition of a debt collector in the FDCPA would be meaningless.
The FDCPA does not allow the disclosure of information to agents.
Using a letter vendor was a choice that was not necessary for Preferred to collect the debt.
Mail vendors existed before the FDCPA was enacted; Congress could have chosen to carve out an exemption for mail vendors when the FDCPA was enacted and chose not to.
Preferred’s collection letters are not subject to constitutional protection.
Preferred’s claims that Regulation F and other regulatory interpretations authorize the use of letter vendors are incorrect and irrelevant.
Mr. Hunstein does not know the scope of his injury because the originally filed case never made it to the discovery phase (editor’s note: “discovery” is the stage of litigation where documents and information are exchanged)
Mr. Hunstein was damaged because information about his debt was provided to a third party, therefore intruding on his private affairs.
Mr. Hunstein’s argument that separate companies cannot act as agents is perplexing since one of the many definitions of the word “agent” is a “person or company that provides a service.” Though he references this position several times in his brief, Mr. Hunstein does not explain it. He attempts to claim the letter vendor was not an agent in a “traditional sense,” but his brief fails to explain what this “traditional sense” is or why the letter vendor in this case failed to meet that criteria.
Hopefully, the Eleventh Circuit will see this argument for what it is: an empty shell with no substance. That said, if the court finds that a third party cannot be an agent unless it meets some unknown “traditional sense” criteria, that might provide an excellent defense to the next creditor that gets pulled into a lawsuit for an alleged FDCPA violation of its collection agency.