A District Court judge in Michigan is questioning the “aggressive” defense that has been mounted in a Fair Debt Collection Practices Act case, denying a motion to dismiss for the third time after the defendant accused the plaintiff of lying to prove he had standing to pursue his claim.
The Background: The defendant filed a collection lawsuit against the plaintiff, seeking to recover an unpaid debt. The plaintiff answered the complaint and denied he owed the debt, stating he believed himself to be the victim of credit card fraud. The plaintiff completed an ID Theft affidavit — at the defendant’s request. The defendant sought a summary disposition of the collection lawsuit, acknowledging the plaintiff denied owing the debt, but failing to mention the identity theft affidavit. The plaintiff ultimately hired an attorney, who submitted another affidavit. The defendant then dismissed the collection lawsuit.
The plaintiff filed suit, alleging the defendant violated the FDCPA by pursuing a complaint and attempting to collect on a debt that the plaintiff did not owe. The defendant, which had already obtained a motion for judgment on the pleadings for one of the three counts, then filed a motion to dismiss the remaining two counts, arguing the plaintiff lacked standing to sue.
During discovery, the plaintiff was asked about the amount that he paid to his attorney to represent him in the state court action. The plaintiff responded, “I don’t remember at this time.” When asked to produce evidence of payments, the plaintiff responded, “I do not have anything as it has been almost two years.”
The defendant then filed another motion to dismiss, saying that the plaintiff admitted to lying about the financial loss he suffered because he falsely alleged he paid his attorney.
The plaintiff filed another affidavit, stating that he discovered that he paid the attorney two monthly payments for a total of $775.
The Ruling: Finding that the defendant has produced no evidence to raise any issue to the plaintiff’s claim he paid $775 to his attorney, Judge Linda V. Parker of the District Court for the Eastern District of Michigan denied the motion to dismiss and then cautioned the defendant regarding how closely it has come to violating the civility principles.
“Counsel for [the defendant] should assess whether this case warrants the aggressive defense it has mounted,” Judge Parker wrote. “Federal Rule of Civil Procedure and the Civility Principles dictate that counsel should not employ a sledgehammer to crack a nut.”
