A District Court judge in California has granted a defendant’s motion to dismiss the Fair Debt Collection Practices Act counts in a lawsuit filed against a collection law firm for filing a lawsuit to evict a disabled individual — the plaintiff, in this case — when the regional center that had been receiving the plaintiff’s Social Security checks and paying his rent with them stopped doing so.
A copy of the ruling in the case of Tinsley v. KCM Brentwood et al. cam be accessed by clicking here.
The landlord knew the plaintiff was disabled and should have given the regional center that was handling his rent payments notice and an opportunity to cure the debt before starting eviction proceedings, according to the plaintiff, who accused the defendants of violating Section 1692e(5) of the FDCPA. The plaintiff also accused the defendants of violating the Americans with Disabilities Act and for due process under the Fourteenth Amendment. By hiring a collection law firm to commence eviction proceedings, the landlord allegedly took an action that could not be taken and thus violated the FDCPA, according to the complaint.
The collection law firm should have known that the landlord was the only person who could notify the plaintiff that the rent had not been paid. But that alleged failure to give notice does not rise to the level of a threatened action that cannot be legally taken under 1692e(5), Judge Araceli Martinez-Olguin of the District Court for the Northern District of California noted.
“To the extent [the plaintiff] attempts to allege that the unlawful detainer complaint constitutes such threatened action, the initiation of those proceedings is alone insufficient to invoke Section 1692e(5),” Judge Martinez-Olguin wrote. The judge did give the plaintiff leave to amend the complaint, should he choose to do so. The judge offered the same opportunity on the ADA claim, noting that no action was taken against the plaintiff on the basis of his disability.
