The 'Sophisticated Judge' Standard: A New Approach to Judicial Deception Under the Fair Debt Collection Practices Act

Abstract

The goal of a plaintiff seeking a default judgment in a debt collection suit is to convince the judge that the alleged debt is valid and owed, and therefore there is nothing for the judge to do but enter a judgment in favor of the debt collector. Unfortunately, some debt collectors take it too far. A serious problem arises when questionable tactics are used; in particular, the submission of misleading and deceptive documents in an effort to deceive the court. Although the Fair Debt Collection Practices Act (FDCPA) is meant to protect consumers from deceptive practices of debt collectors, the Seventh Circuit has recently held that the FDCPA does not extend to communications directed at judges. This article examines the background of the FDCPA and its application in the Seventh Circuit's recent decision in O'Rourke v. Palisades Acquisition XVI. It will argue that, contrary to the majority‘s holding in O'Rourke, Section 1692e of the FDCPA should cover communications provided to a judge. The article explains the necessity of a new alternative, the 'sophisticated judge' standard, to cover these types of misleading and deceptive representations. Finally, the article proposes that the 'sophisticated judge' standard could allow judges hearing FDCPA suits to view the issue of deception as a question of law, rather than a question of fact - thus, extrinsic evidence would not be needed to overcome a defendant‘s motion for summary judgment.