Heintz v. Jenkins: the lawyer's letter was a debt collector's letter
Darlene Jenkins defaulted on a car loan, and the bank's law firm sued her. A lawyer's settlement letter added $4,173 for an insurance policy she said the loan did not allow. In 1995 a unanimous Supreme Court held that a lawyer who regularly collects consumer debts, including through lawsuits, is a debt collector under the FDCPA.
A public record, not a client of this firm. Everything on this page comes from the Supreme Court's opinion cited at the end. The case reached the Court on a motion to dismiss, so no court decided whether the charge was improper. Usher Law Group did not represent anyone in this matter, we publish no results of our own, and nothing here predicts the outcome of any other case.
Darlene Jenkins borrowed money from Gainer Bank to buy a car. The loan agreement required her to keep the car insured against loss or damage, and allowed the bank to buy insurance to protect the car if she did not. She did not keep it insured. The bank bought a policy. Then she defaulted on the loan.
The bank's law firm sued her in state court for the balance. To try to settle the case, a lawyer at the firm, George Heintz, wrote to her lawyer. His letter listed what she owed, and the list included $4,173 for the insurance the bank had bought.
Jenkins said that charge was not what the loan agreement allowed. The policy the bank bought did not just insure the car against loss or damage. It also insured the bank against her failure to repay the loan. So, she argued, the letter misstated the amount of her debt and tried to collect an amount the agreement did not authorize.
She sued the lawyer and his firm under the Fair Debt Collection Practices Act.
The question
The FDCPA forbids a "debt collector" from making false or misleading representations, including about "the character, amount, or legal status of any debt" (15 U.S.C. § 1692e(2)(A)), and from collecting any amount not "authorized by the agreement creating the debt" (§ 1692f(1)).
The district court threw her case out. Its reason was not about the insurance. It held that the FDCPA does not apply to lawyers engaged in litigation. The Seventh Circuit reversed. The Sixth Circuit had gone the other way in a different case, so the Supreme Court took the case to decide the split.
What the Court did
On April 18, 1995, the Court ruled for Jenkins, nine to zero. Justice Breyer wrote that there were "two rather strong reasons" the Act applies to litigating lawyers.
- The words. The Act defines a debt collector as anyone who "regularly collects or attempts to collect, directly or indirectly," consumer debts owed to another (§ 1692a(6)). In ordinary English, a lawyer who regularly tries to get consumer debts paid through lawsuits regularly attempts to collect them.
- The history. When Congress passed the Act in 1977, it expressly excluded any attorney collecting a debt for a client. In 1986, Congress repealed that exclusion entirely, and did not replace it with a narrower one for litigation.
The lawyer argued that applying the Act to litigation would produce strange results, pointed to a statement by one of the 1986 sponsors, and relied on informal Federal Trade Commission staff commentary. The Court found none of it convincing. It doubted that courts would read the Act to make a lawsuit that simply turns out to be unsuccessful a violation by itself. And it noted that a consumer's letter telling a collector to stop communicating was not likely to be read to halt an ordinary collection lawsuit, because the stop rule has exceptions for notifying the consumer of a remedy the collector intends to invoke (§ 1692c(c)(2), (3)). The Seventh Circuit's judgment was affirmed, and Jenkins's case went forward.
Why it matters
Many consumer collection lawsuits are filed by law firms whose practice is collecting debts. In Sykes, one firm represented the debt buyer in 99.63 percent of its 124,838 New York City cases. Before Heintz, those firms could argue that the rules against false statements and unfair practices stopped at the courthouse door. After Heintz, they cannot.
That is how the New York cases on this site work. In Sykes v. Mel S. Harris, one of the defendants was the law firm that filed the suits. In Rotkiske v. Klemm, the defendant was the collection firm that sued him. In the CFPB orders against the two largest debt buyers, the conduct at issue included sworn affidavits filed in court.
Heintz also sits beside a later case about who else is covered. In Henson v. Santander Consumer USA Inc., 582 U.S. 79 (2017), the Court held that a company that buys defaulted debts and collects them for its own account is not collecting debts "owed to another" under that part of the definition. Debt buyers can still be covered if collecting debts is their principal purpose. The who is a debt collector page lays out each category.
What it means for you now
- Read the collection lawyer's papers as a collector's papers. The demand letter, the complaint, the itemization, the affidavit. If a figure is wrong, or a fee or charge is not in your agreement, that can be an FDCPA violation by the law firm (§§ 1692e(2)(A), 1692f(1)). The wrong amount and fees page explains how to check.
- If you have been sued, do not ignore the papers. The answer deadline is short. Start with sued by a debt collector.
- Watch the venue. A collector's lawsuit must be filed where you signed the contract or where you live (§ 1692i(a)(2)). See sued in the wrong county.
- Remember the year. FDCPA claims must be filed within one year of the violation.
The FDCPA requires a collector found liable, including a law firm, to pay the consumer's reasonable attorney's fees and costs.
The pages this story points to
Who is a debt collector
Agencies, debt buyers, law firms, and when a creditor counts.
Read →Wrong amount and fees
Charges the agreement never allowed, and how to spot them.
Read →Sued by a debt collector
The deadline to answer, the defenses, and the claims you can raise.
Read →Sources. Heintz v. Jenkins, 514 U.S. 291 (1995), U.S. Reports (Library of Congress); Henson v. Santander Consumer USA Inc., 582 U.S. 79 (2017); 15 U.S.C. §§ 1692a(6), 1692e, 1692f, 1692i.
Common questions
Does the FDCPA apply to the law firm that sued me?
If the firm regularly collects consumer debts owed to others, yes. Heintz held that a lawyer who regularly tries to collect consumer debts through legal proceedings meets the FDCPA's definition of a debt collector. What the firm says in its letters, its complaint and its court papers is subject to the Act's rules against false statements and unfair practices.
Is the bank itself covered by the FDCPA?
Usually not, if it is collecting its own debt under its own name. The FDCPA covers third parties collecting debts owed to someone else, and the Supreme Court held in Henson v. Santander (2017) that a company collecting debts it bought for its own account can fall outside the 'owed to another' definition. Debt buyers whose principal purpose is collecting debts are still covered. In Florida, the FCCPA reaches creditors directly.
Can a collection lawyer be liable for losing a lawsuit?
The Supreme Court doubted that a lawsuit that simply turns out to be unsuccessful would, by itself, violate the FDCPA. The Act forbids false or misleading representations and unfair means, and a lawyer who asks for an amount the contract does not allow, or states the debt falsely, can be liable for that.
Tell us what they did.
One conversation with an attorney, in your language. We tell you which laws the collector or the credit bureau broke, which deadline runs first, and what to save this week. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510The FDCPA and the FCRA require a company found liable to pay the consumer’s reasonable attorney’s fees and costs. Our fee arrangement is confirmed in a written retainer before we begin. English, Russian and Spanish in-house; an interpreter for any other language.