Trial Court Slams Professional FDCPA Plaintiff, Awards Defendant Attorney’s Fees

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Thomas Dominczyk

Thomas Dominczyk

Earlier this month, a Judge in the Eastern District of New York granted summary judgment to a defendant accused of technical FDCPA violations [e(11)]  finding that the plaintiff’s  “grievance is not merely meritless, it is frivolous.”  In his decision, Judge Leo Glasser reiterated an observation that he had made seven years ago describing a rising tide of FDCPA complaints brought by a  “cottage industry” of “professional plaintiffs” who file suits for violations of the FDCPA.

In this case, Majerowitz v. Stephen Einstein & Assocs., P.C., the Plaintiff called the Defendant’s office and heard a recorded message identifying the Defendant as a debt collector and informing the Plaintiff that its communications were attempts to collect a debt.  Plaintiff entered into a settlement agreement with Defendant and Defendant agreed to call back later to confirm the settlement.  When Defendant called back later it left a message that identified itself but did not contain the e(11) disclosure.

The next day, Plaintiff called Defendant and again heard the recorded message with the e(11) disclosure, spoke with Defendant and finalized the settlement.  In addition, Defendant sent a letter to Plaintiff confirming the terms of settlement and said letter advised that it was a debt collector and that the communication was an attempt to collect a debt.  When the Plaintiff failed to submit his payments pursuant to the terms of the settlement, Defendant placed calls to Plaintiff and left messages that did not include the e(11) disclosure.

The court noted that Plaintiff was well aware of the Defendant’s status as a debt collector and that this type of conduct was decidedly NOT what the FDCPA was designed to protect against.  Further, it was evident from the record that Plaintiff was notified three times within the span of two days that the Defendant was a debt collector.  Citing the legislative history of the FDCPA, the Court reasoned that Plaintiff was not seeking redress for any of the abuses contemplated in the Senate Report but rather that his only complaint was that the Defendant did not disclose in every communication to him that it was a debt collector.

Judge Glasser found that the Plaintiff was not the most gullible consumer and was exactly the hypothetical consumer that he envisioned seven years earlier in Jacobson v. Healthcare Fin. Servs., Inc.  Furthermore, the court took judicial notice of the fact that Plaintiff filed four additional complaints against other debt collectors on the same day as the one at hand, all of which alleged essentially the same claims.

As a result, the court granted the Defendant’s motion for summary judgment and attorney’s fees and costs.

The full decision is available here.

Thomas R. Dominczyk focuses his practice at  Maurice & Needleman, P.C. on various aspects of creditors’ rights law, with an emphasis on consumer financial services litigation. He has successfully represented financial institutions and law firms throughout the country for claims filed under the Fair Debt Collection Practices Act, Fair Credit Reporting Act and various state consumer protection statutes. In addition to his litigation practice, Tom represents national, regional and local creditors in a variety of bankruptcy matters ranging from simple claim filing and management to complex non-dischargeability litigation and preference defenses. His articles can be found on Maurice & Needleman’s Consumer Financial Services Blog.

Tom has been named a New Jersey Rising Star in the area of Civil Litigation Defense by Super Lawyers. Prior to joining Maurice & Needleman, he served as a Judicial Clerk to the Honorable Graham T. Ross, P.J.F.P., Superior Court of New Jersey, Somerset County.

 

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Posted in Collection Law Firms, Collection Laws and Regulations, Debt Collection, FDCPA, Featured Post .

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  • avatar Commercial Guy says:

    Good job, judge. Now if the decision will stand, we might begin to see a reduction in nuisance suits, and see the FDCPA used as it was intended.

  • avatar nascar says:

    Clear signal that judges are getting fed up with suits based on technical violations. Even though the judge’s ruling runs contrary to the plain language of the FDCPA, I can’t say I much sympathy for the Plaintiff in this one. Some cases probably should never be brought.

    However, the requirement that collectors disclose in subsequent communications that the communication is from a debt collector indicates Congress contemplated multiple communications between the debt collector and consumer. If Congress thought a single disclosure was sufficient, it would not require the disclosure be made a second time, or a third time, etc. I don’t think this one would hold up on appeal.

  • avatar Newb Collector says:

    That woudl also depend, Nascar, on if we are talking about Foti Messages, which this probably wasn’t or Zortman messages.

  • avatar todd bean says:

    Neb Collector,

    Not at all, has nothing to do with “in connection with the collection of the debt” This is talking about the run of the mill standard “this communication is from a debt collector” that is to be advised to the consumer in each communication.

    The court stated the absolute obvious, the debtor knew they were dealing with a debt collector, however, the strict liability language of the FDCPA does not state it is okay to leave off the warning if you’ve already said it a million times or the collector is 100% sure the consumer already knows.

    It’s a slam dunk reversal on appeal but the judge did make the 100% most basic common sense argument about the debtor knowing the communication was from a debt collector.

    Problem is that is all good and well but the FDCPA was still broken and it is strict liability.

    I’m doing the same right now. Even Nascar from another site is happy I’ve lost the first round but even he and others know it is a slam dunk reversal on appeal.

    Federal judge’s are human and they let emotion and even common sense get in the way of the law. This was a common sense ruling the judge gave, but one that will be a slam dunk on appeal and like my case the celebration of the consumer getting slammed with fees is just a short lived ALMOST victory.

    It is like that 100-1 long shot horse that leads for 95% of the race and all the bettors that bought that 5.00 win ticket on the long shot hoping and praying, screaming and hollering as that 100-1 gets closer to the finish line and then in the last three seconds of the race, four superior horses just fly past the 100-1 and the long shot still ends up finishing out of the money.

    It was fun for a while and fun for even most of the race. In fact got the heart rate up and gave people a chance to go crazy, but the race is not over at 95% and that is what this ruling will be if it is appealed, a short lived ALMOST victory.

  • avatar Commercial Guy says:

    As Nascar says, it is becoming more and more clear that judges are fed up with professional FDCPA plaintiffs. If they have to make it an expensive lesson for it to sink in, that’s what they will do. You keep talking about “slam dunks”, Todd, but it should be clear to you by now that there is no such thing as a “slam dunk” in a federal courtroom, and no such thing in an appeals court either.

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