In a case that was defended by the team at Martin Golden Lyons Watts Morgan, a District Court judge in Missouri has granted a defendant’s motion to dismiss a Fair Debt Collection Practices Act case because the plaintiff could not provide enough evidence to support his claim that the defendant knew the plaintiff was represented by an attorney after the original creditor had been notified of the representation.
A copy of the ruling in the case of Korth v. Credit Control can be accessed by clicking here.
The plaintiff fell behind on his credit card payments and hired a lawyer to help him with the debt. The firm notified the creditor that the plaintiff was now represented by counsel and demanded that all further communications with the plaintiff go through the firm. The creditor acknowledged receipt of the letter.
The account was then placed with the defendant for collection. Five years after the creditor acknowledged receipt of the letter from the plaintiff’s attorney, the defendant sent a letter to the plaintiff to collect on the debt.
The plaintiff filed suit, alleging the defendant violated Sections 1692c(a)(2) and 1692c(c) of the FDCPA because “upon information and belief” the defendant knew that he was represented by an attorney and that all communications were supposed to go through the firm. If the defendant didn’t have such knowledge, the plaintiff alleged, then it was “willfully blind” and either was negligent or lacked the policies and procedures to identify accounts where an individual was being represented by an attorney.
The defendant filed its motion to dismiss on the grounds that the allegations made by the plaintiff were speculative and conclusory and because the plaintiff failed to provide any information to substantiate the claim that the defendant knew the plaintiff was represented by an attorney.
Judge Rodney W. Sippel of the District Court for the Eastern District of Missouri didn’t have to look far or for another defendant to find a precedent. Using a ruling from earlier this year against the same defendant, Judge Sippel determined that “without any factual support for his allegation of actual knowledge pursuant to industry custom,” the plaintiff’s complaint failed to state a claim and granted to motion to dismiss.
