The FDCPA “is not a game, and its purpose is not to provide a business opportunity” says District Judge

A judge for the Eastern District of New York had some harsh words for plaintiff attorneys using the FDCPA as a blank check book for themselves and their clients.

The plaintiff, Mr Levi Huebner, brought suit against Midland Credit Management, Inc., for an alleged violation of the FDCPA during a phone conversation. A phone call, District Judge Brian M. Cogan thought important to point out, that was initiated by the plaintiff “for reasons that now seem obvious[:] he chose to record it.”

The plaintiff alleged he was told that “he could not orally dispute the debt” and that “he must have a reason to dispute a debt.”

These statements, per the complaint, were violations of of 15 U.S.C. §§ 1692e(8) and 1692e(10).

Because the plaintiff recorded the call, Judge Cogan refers to it in his decision:

Moreover, his baiting of the representative is very apparent from the transcript. At one point, he asks her, “I don’t understand, I can’t take it off my credit card, my account without paying it?” The representative declined the bait: “That’s not what I said, sir, I need to know what your dispute is before I can just delete it for you. So you’re saying you want to dispute it, why is it that you want to dispute it?” Plaintiff then reverted to his refrain that the debt is “nonexistent.” For the third time, the representative asked, “Did you ever have Verizon, sir?” And plaintiff would only answer “I don’t understand the question you ask me, this is a non-existent debt.” She responds, “[i]t’s a very straightforward question. Did you ever have Verizon service?” Plaintiff again evaded the question: “Okay, but I told you, you ask me, I told you, if you tell me, you’re not going to take my dispute, that’s fine. I’m just going to try to see if I can get more information.” The substantive discussion in the call ended with the representative saying, “I’m trying to help you with your dispute, sir, but you’re not really helping me help you.”

It is notable that despite the representation in the complaint that plaintiff was told he could only dispute the debt in writing, which was reaffirmed by plaintiff’s counsel at the Initial Status Conference, the word “writing” is never mentioned in the call. Again, it is undisputed that following this call, defendant immediately dispatched a cessation letter and no effort was made at collection.

The Judge’s Comments

“The majority of cases that I see under the statute are brought by a handful[of the same lawyers, based on complaints that read much more like legal briefs than complaints,” Judge Cogan explained in his write-up.

“A cottage industry among limited players — plaintiffs’ lawyers, debtors, and even defendants’ lawyers — appears to be the primary progeny of the statute,” Cogan added. He went on to say that, “Still, a technical violation of the statute is a violation, and although the social utility of this industry may be questioned, this technical use of the statute for economic gain violates no law or ethical precept.”

Regardless, though, in this case, the judge  wrote that he was “inclined to award defendant attorneys’ fees and costs in connection with having to defend this action.”

“[This] case…goes beyond anything that the Court has seen. It represents a deliberate and transparent attempt by a sophisticated debtor to entrap a collection company into a technical violation. Even more problematically, plaintiff chose to bring this action even though there is a tape recording showing that the attempt at entrapment utterly failed. The collection company in this case did everything by the book, and yet has still found itself a defendant in an FDCPA action. There are substantial questions about whether this action should be allowed to proceed and whether defendant is entitled to recover attorneys’ fees for having had to defend it.”

By Mike Bevel