Details matter, don’t they? Take, for instance, this Fair Debt Collection Practices Act lawsuit. The plaintiff — who lives in Texas — received an email from the defendant. The email includes the following disclosure:
YOU HAVE THE RIGHT TO MAKE WRITTEN OR ORAL REQUEST THAT TELEPHONE CALLS REGARDING YOUR DEBT NOT BE MADE TO YOU AT YOUR PLACE [OF] EMPLOYMENT. ANY SUCH ORAL REQUEST WILL BE VALID FOR ONLY TEN DAYS UNLESS YOU PROVIDE WRITTEN CONFIRMATION OF THE REQUEST POSTMARKED OR DELIVERED WITHIN SEVEN DAYS OF SUCH REQUEST.
The plaintiff sues, alleging the defendant violated the FDCPA and state law in Texas by “deceptively misrepresenting his rights to orally and unconditionally demand that NCS not call him,” according to the complaint. But, what the plaintiff left out — intentionally or accidentally — was the text above the disclosure. What did the text say, you ask?
“Disclosure for Massachusetts consumers.”
So, the defendant files a motion to dismiss and a motion to have its attorney’s fees and costs covered by the plaintiff because the litigation is frivolous. The plaintiff then files a motion to voluntarily dismiss the suit with prejudice. The defendant refuses to agree because, it argues, this is the “standard practice” of the law firm representing the plaintiff to demand “ransom settlements” to dismiss cases filed without merit.
Ultimately, Judge Sim Lake of the District Court for the Southern District of Texas, denied the defendant’s motion for fees and costs, ruling that while the plaintiff’s claim to have been misled by capitalized text in the letter — leading him to overlook that the disclosure was for Massachusetts residents only — was “weak” it was “at least colorable.” The plaintiff also moved to voluntarily dismiss the case less than six months after the complaint was filed, which indicates there was no attempt to “unreasonably and vexatiously” multiply the costs of the proceeding by failing to dismiss the action following the defense counsel’s initial requests, Judge Lake ruled.
A copy of the ruling, in the case of Hussein v. National Credit Systems, can be accessed by clicking here
