When suing collection operations, there are boxes that plaintiffs need to check, and if those steps are missed, it makes it easy for judges to rule. A District Court judge in Florida has granted a defendant’s motion for summary judgment in a Fair Debt Collection Practices Act case because the plaintiff forgot, or chose not to, make sure that she alleged the debts were for personal use and that the defendants were, in fact, debt collectors under the statute.
The background: The plaintiff defaulted on two credit card accounts with a combined balance of more than $100,000. After receiving the accounts, the defendant sent the plaintiff validation notices for each debt. The plaintiff responded a few weeks later with written disputes and a request to cease communication. The firm had already sent verification on one of the accounts and then halted further communications as requested.
- Months later, the bank filed two separate state-court collection lawsuits.
- The plaintiff responded by suing the law firm and two of its attorneys in federal court, alleging FDCPA violations and fraudulent misrepresentation.
The ruling: Judge Steven D. Merryday of the District Court for the Middle District of Florida found that the plaintiff failed to establish two of the three mandatory elements of an FDCPA claim: that the accounts were consumer debts and that the defendants were debt collectors.
- Judge Merryday noted that the firm was acting solely as counsel for the creditor and pointed to Eleventh Circuit precedent holding that such conduct does not automatically make an attorney a debt collector. The judge wrote that the plaintiff “offers no evidence that [the firm] or an [attorney] qualifies as a debt collector” and emphasized that the undisputed evidence showed compliance with Section 1692g, including sending validation notices and ceasing communication upon request.
- On the fraudulent misrepresentation claim, the court again faulted the plaintiff for failing to present any admissible evidence.
- Judge Merryday also rejected attempts by the plaintiff to introduce new legal theories in her summary judgment response, reminding that new claims cannot be added at that stage.
- The judge did give the plaintiff until today to amend her complaint, but the court made clear she “may not reassert her claim under the FDCPA.”
