A District Court judge in Texas has denied a defendant’s motion for summary judgment after it was sued for violating the Fair Debt Collection Practices Act by omitting the “II” in an individual’s name and accidentally serving the individual’s father with a debt collection suit, even though the father knew the summons was for his son.
A copy of the ruling in the case of Smith v. Moss Law Firm can be accessed by clicking here.
The defendant was retained to file a collections lawsuit against Christopher O. Smith II. However, when it drew up the documents and filed the lawsuit, the petition referred to Christopher O. Smith. A process server served the father with the summons, and even though he “immediately recognized the lawsuit was for his son, who bore his exact name, but with the suffix ‘II’ attached,” the father accepted service. The father’s wife called the defendant to notify them that the suit had been filed against the wrong Christopher O. Smith. An attorney for the defendant confirmed that they were not seeking to collect from the father.
Even though the defendant had assured the plaintiff that it would sue, the plaintiff was worried about a default judgment being entered against him and he retained counsel. During this process, the defendant found a possible out-of-state address for Christopher O. Smith II, and it internally closed the account and filed a motion to nonsuit the original lawsuit.
The plaintiff subsequently sued, alleging the defendant violated Section 1692k of the FDCPA and the Texas Debt Collection Practices Act.
The defendant argued that the plaintiff knew he was not the subject of the lawsuit and knew that the defendant was not going to pursue its suit against him, and that it was entitled to the FDCPA’s Bona Fide Error defense, but Judge Sidney Fitzwater of the District Court for the Northern District of Texas, Dallas Division, disagreed.
“Although a reasonable jury could certainly find that Moss is entitled to the protection of the bona fide error defense, the court cannot say that this is the only
