102 Iowa L. Rev. 1789 (2017)

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Abstract

This Note examines the history of the 1977 Fair Debt Collection Practices Act and discusses how courts should use this history to interpret an ambiguity in one of the Act's provisions that has fractured courts for 40 years. Congress passed the Fair Debt Collection Practices Act in 1977 to address abusive debt collection practices utilized at the time. One of the Act's consumer protection provisions prohibits a debt collector from communicating with a third party about the consumer's debt, but provides a very narrow exception to allow the debt collector to contact third parties in good faith for the express reason of locating the consumer, if the consumer is otherwise unavailable. Courts have inconsistently applied this provision since Congress passed the Act. Some courts treat the exception as an affirmative defense, requiring the debt collector to prove it acted in good faith and complied with the relevant provisions. Other courts have required the consumer to prove that the debt collector acted in bad faith and violated the statute. When applying this exception, courts have utilized an almost purely textual analysis, which, due to the Act's ambiguity on which party has the burden of proof, has led to these inconsistent applications. This Note argues that a purely textual interpretation of the Act is inadequate and will continue to lead to fractured decisions. Instead, this Note argues that an analysis incorporating the history of the Act and emphasizing the context in which Congress passed it reveals a much clearer answer to the burden of proof question and will lead to more consistent application.