Judge Grants MTD in FDCPA Case Over Use of Form Complaint

Using a standard template form in a lawsuit against an individual does not constitute a violation of the Fair Debt Collection Practices Act, a District Court judge in Nebraska has ruled, granting the defendant’s motion to dismiss.

A copy of the ruling in Schmitt v. Messerli & Kramer, P.A., can be accessed by clicking here.

The defendant filed a lawsuit in a Nebraska county court against the plaintiff, seeking to recover an unpaid debt. The state court complaint contained the following information:

• Plaintiff is a legal entity existing under the laws of the United States.
• Defendant is a resident of the county of SARPY County, Nebraska.
• On or about July 27, 2007, Defendant did enter into a contract.
• Defendant breached the contract by failing to make payment in accord with the terms of the contract.
• After giving Defendant credit for all payments made, as of April 27, 2018, there remains an unpaid principal balance of $16,370.25.
• Plaintiff is damaged as a result in the amount of $16,370.25.
• Upon information and belief, Defendant is not an active member of the Armed Forces of the United States or of its Allies.

Ultimately, the county court case was dismissed by the defendant without prejudice. However, the plaintiff then filed a lawsuit against the defendant, arguing that the complaint template used by the defendant violated Sections 1692e and 1692f of the FDCPA by being a false, deceptive, unfair and unconscionable attempt to collect on a debt. Among the information the plaintiff said was not included in the county court complaint was: details to determine whether the contract was oral or written, a copy of the contract, the identity of whom the plaintiff entered into the contract, and the amount being sought.

The template was too vague for an unsophisticated borrower to understand “to which debt it referred,” and that an individual should not be required to hire an attorney in order to understand the claims against him, the plaintiff argued.

However, the Eighth Circuit Court of Appeals in Haney v. Portfolio Recovery Associates

had previously ruled that the failure to include this information can not serve as the basis for a claim, so, as a matter of law, the defendant’s county court complaint could not be false, deceptive, unfair or unconscionable.