A California appeals court has upheld a lower court’s ruling in favor of a plaintiff in a Rosenthal Fair Debt Collection Practices Act case, agreeing that the collection operation had enough “knowledge” to know that the plaintiff could not have been properly served with a complaint in an underlying debt collection lawsuit and that the notice of assignment that the defendant sent went to an address that the plaintiff was not living at.
A copy of the ruling in the case of Minser v. Collect Access can be accessed by clicking here.
Back in 2000, a collection lawsuit was filed against the plaintiff, and a default judgment was awarded. In 2008, the judgment was assigned to the defendant, who sent the plaintiff a notice of assignment as well as an application to renew the judgment. In 2015, a writ of execution was issued and the defendant began to collect, via a bank levy and by garnishing the plaintiff’s wages. The plaintiff finally responded, indicating he was never served with the original complaint and had only just become aware of the judgment. The original complaint was allegedly served on him at his home address while he was away taking care of his mother, who had suffered a stroke, and the notice of assignment was sent to an address he wasn’t living at. The plaintiff provided affidavits and copies of utility bills to back up his claims.
The defendant relied on proof of service records filed with the original complaint in the debt collection case, and said it used an address found in the plaintiff’s credit report to send the notice of assignment.
The plaintiff filed suit, and the court ruled in favor of the plaintiff, awarding $1,000 in statutory damages, $10,152 in restitution for the amount wrongfully collected, and $13,000 in attorney’s fees and costs.
On appeal, the court determined that there was enough evidence provided by the plaintiff that had the defendant “undertaken a reasonable inquiry at the time,” it would have determined that the plaintiff never received the documents in question. Having “actual” knowledge is not part of the statute, the appeals court ruled.
“A construction that adds the word ‘actual’ to section 1788.15’s requirement of what the debt collector ‘knows’ would not accomplish the Legislature’s purposes in enacting the Rosenthal Act, and would encourage debt collectors to rely on suspect documentation regarding service by discouraging if not outright excusing the consideration of any compelling contrary evidence,” the appeals court wrote.
