In a case that was defended by Brit Suttell of Barron & Newburger, a Washington state appeals court has upheld the dismissal of a consumer’s Fair Debt Collection Practices Act lawsuit accusing a collection law firm of acting unfairly by staying silent after she told the firm she had never been served in the cases underlying two default judgments against her.
The background: The dispute grew out of two default judgments the defendant obtained against the plaintiff.
- The plaintiff said she did not learn any lawsuits had been filed against her until the defendant mailed her letters announcing the judgments, which totaled $3,330.28 and $8,294.26, and she was unsure whether the debts were even hers.
- The declarations of service in the two cases stated that a “gray-haired white female” and a “dyed-haired white female” had been served. The plaintiff mailed the firm a certified letter with a redacted copy of her driver’s license, telling it the descriptions did not match her and writing that “it is not possible to mistake [her] for a white woman, regardless of how anyone’s hair is styled.”
- After getting no response, she sued under the FDCPA, the Washington Collection Agency Act (WCAA), and the Washington Consumer Protection Act (CPA), arguing the firm used unfair and unconscionable tactics by refusing to acknowledge it was sitting on judgments that should never have been entered.
- A trial court dismissed the complaint for failure to state a claim, and the plaintiff appealed.
The ruling: The Appeals Court affirmed the dismissal, holding that the plaintiff had not pleaded facts showing the firm used unfair or unconscionable means to obtain the default judgments.
- The Appeals Court wrote that the firm’s declarations of service were facially valid and that, under state law, a facially correct return of service is presumed valid once judgment is entered, leaving the burden on whoever attacks it to show by clear and convincing evidence that service was irregular.
- Federal courts have let FDCPA claims proceed where a collector fraudulently obtained facially valid affidavits of service, but the plaintiff here argued only that the firm should have moved to vacate the judgments after she sent her letter, and none of the cases she cited treated a failure to vacate after notice as unfair or unconscionable.
- The plaintiff’s complaint never alleged the firm actually knew service was ineffective and pressed ahead anyway. If she wanted to pursue that theory, she would have to plead it consistent with the rule requiring good-faith factual allegations, which she had not done.
- The appeals court also rejected the WCAA claim because the plaintiff did not allege the defendant contacted her or tried to collect improper fees after she sent the license, and dismissed the CPA claim because it rose or fell with the two statutory claims the plaintiff failed to plead.
- The court did note that the plaintiff could prevail on a separate motion to vacate the judgments for lack of proper service.
