The Court of Appeals for the Second Circuit has affirmed a lower court’s ruling in favor of a defendant that was sued for violating the Fair Debt Collection Practices Act, agreeing that the defendant’s conduct did not violate the statute and that that plaintiff’s claims were partially time-barred.
The Background: The plaintiff owned a condo in Brooklyn. In 2015, the condo’s board retained the defendant to collect unpaid fees. The defendant sent the plaintiff a letter via certified mail, identifying itself as a debt collector and notifying her that it had been retained to collect the unpaid fees. Six months later, the defendant filed a collection lawsuit. The plaintiff alleged the defendant engaged in sewer service by failing to serve her with the summons and complaint.
- While the collection lawsuit case was pending, the defendant was contacted by an attorney who said he was representing the plaintiff. As well, the plaintiff’s two daughters, one of whom had power-of-attorney over her mother’s affairs, appeared in court for their mother.
- The defendant prevailed on its collection lawsuit and was awarded attorney fees on top of the order.
- The plaintiff filed this suit, alleging the defendant violated numerous provisions of the FDCPA. A District Court judge ultimately granted the defendant’s motion for summary judgment, which the plaintiff appealed.
The Ruling: Getting rid of the easy stuff first, the Appeals Court affirmed the lower court’s ruling that the claim the defendant violated Section 1692g of the FDCPA in a communication it sent to the plaintiff was time-barred because it was filed more than 18 months after the one-year statute of limitations had expired.
- Similarly, the sewer service argument was also quickly dispensed with by the Appeals Court. The plaintiff could not overcome the presumption created by the process server’s affidavit that the plaintiff was served with the summons and complaint.
- The plaintiff also claimed the defendant violated Section 1692c(b) of the FDCPA by communicating with third parties about her debt without the plaintiff’s consent, but the third parties were the plaintiff’s daughters, both of whom had appeared in court and one of whom had power-of-attorney, and the attorney, who initiated communication with the defendant and indicated he was representing the plaintiff.
- The plaintiff also claimed the defendant failed to identify itself as a debt collector in a letter that was sent to the plaintiff and her daughters. But that letter was sent more than a year after the collection lawsuit had been initiated and after the defendant had filed this suit of her own, the Appeals Court noted.
- “All sides knew the Firm was acting as a debt collector,” the Appeals Court wrote. “The letter’s failure to re-identify the Firm as a debt collector could not have ‘impede[d] [the plaintiff]’s ability to respond to or dispute collection’ and therefore was immaterial.”
