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Plain Meaning Rolls On in Gorsuch's First [Credit Related] Opinion

posted by Jason Kilborn

It was not at all surprising that, for his first (traditionally unanimous) opinion, in Henson v. Santander, the new Justice Gorsuch took on the relatively simple and low-key issue of the definition of "debt collector" in the Fair Debt Collection Practices Act. It was also not surprising that he hewed quite closely to the approach of his predecessor in basing his decision on the "plain meaning" of the words in the statute, complete with grammatical analysis of past participles and participial adjectives (the example adduced, "burnt toast," might describe how the consumer protection industry will view this latest ruling). The FDCPA is as simple as it appears, the Court confirmed:  if you're collecting a (consumer) debt owed to someone else, then you're a debt collector; if you're collecting on a debt owed to you, for your own account, you're not a debt collector, even if, as in Santander's case, you bought the debt from the original creditor with the intention of collecting it for an arbitrage profit later. The notion that Congress did not foresee the debt buying industry and its explosive growth when it wrote the FDCPA in the 1960s, and it certainly would have wanted to constrain abusive collections practices by debt buyers as much as by debt collectors was ... wait for it ... a matter for the present Congress to clarify. You can almost see Scalia whispering in Gorsuch's (or his clerk's) ear as the opinion is drafted. Well, at least there's something to be said for predictability.


Hi Jason - I read the decision differently. Santander was not a typical distressed consumer debt buyer here - it bought an entire loan portfolio, including performing loans. Its lawyer heavily stressed that in the oral argument. And it would not make sense for the decision to be unanimous if it were that broad after the strong dissent a few weeks ago in Midland Funding v. Johnson ((in which, as I recall, no one took the position that debt buyer Midland Funding was categorically exempt from the FDCPA).

Hey, Melissa! I would like to read the Henson opinion as offering some wiggle room, and it does suggest that its approach might have been different (I still doubt it) if the arguments for treating Santander as a debt collector due to its activity on OTHER distressed loans had been included in the cert. petition, but I think we've seen far too many of these kinds of "plain language" opinions to continue to entertain the notion that policy or extremely creative interpretation will sway a majority of this Court. With Gorsuch, it seem the second verse will be the same as the first.

"Plain language" ----either that or the unintended consequences of the alternative.

Crafty individuals since the beginning of time will be attempting to pervert the meaning. In our way of doing things the ball is back in the legislature's court.

Judges should stay away from legislating from the bench or we will have chaos. Take it from one who knows first hand.

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