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Derricotte v. Pressler & Pressler, LLP

2011 WL 2971540 (U.S. Dist. Ct. D. N.J. 2011) (Unpublished)

FDCPA; ATTORNEYS — Filing a state court collection action does not constitute harassment under the Fair Debt Collection Practices Act even if the attorneys filing the suit do not have the immediate means of proving the debt.

A law firm represented a buyer of distressed debt. The firm filed a complaint against a particular, seeking to collect what was owed, and the debtor filed an answer requesting validation of the debt and demanding that the law firm cease and desist all telephone calls regarding the alleged debt. After receiving the cease and desist letter, the law firm telephoned the debtor, but hung up before the call was answered. Furthermore, there were factual disputes regarding a detailed letter about the debt and on how many times the law firm had called the debtor. The debtor alleged that she never received any letter documenting the debt and that the law firm had called numerous times.

Under the Fair Debt Collection Practices Act (FDCPA), a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. The debtor contended that this law firm had violated the FDCPA by consistently harassing her with telephone calls, by filing the State Court complaint, by failing to provide her with written notice of the alleged debt, and by providing inaccurate or incomplete responses to her discovery requests in the State Court Action.

The law firm moved for summary judgment and for an award for attorney fees. The Court granted the law firm’s motion for summary judgment, however it denied an award for attorneys’ fees. It found no evidence or record of the alleged numerous phone calls alleged to have been made by the law firm. The debtor’s allegations were undocumented and unsupported and therefore insufficient to survive summary judgment. Furthermore, it found that the phone calls that the law firm did make were not made with an intent to harass, oppress or abuse. Next, the Court addressed the phone call that the law firm made after the cease and desist letter. Under the FDCPA, a collector cannot communicate with a consumer after it receives written notice to cease communication. A communication is defined as conveying information regarding a debt directly or indirectly to any person through any medium. The Court found that since the law firm never spoke to the debtor, there was no communication. There was no intent to harass, oppress or annoy the debtor. The law firm staff had removed the debtor’s name from the call list, however a paralegal, by mistake, dialed the number and immediately hung up. There was a failure to show any evidence of intent to harass, oppress, or abuse.

The debtor also alleged that the filing of the law suit violated the FDCPA because the law firm knew that it lacked the evidence to prove the debtor owed the debt and the firm intended thereby to harass and mislead the debtor into paying the debt. However, the Court also concluded that the state court collection action did not constitute harassment. Filing of a debt collection lawsuit without the immediate means of proving the debt does not have the natural consequences of harassing, abusing or oppressing a debtor. Furthermore, the debtor contended that she never received proper written notification of her right to dispute the debt. However, the law firm offered evidence that it created the notice of debt, sent it to the address where defendant lived, and the notice was not returned as undeliverable. Therefore, the law firm complied with the Act’s notice requirements.

Lastly, the debtor argued that the law firm had failed to comply with its discovery obligations. However this argument was never addressed in the debtor’s opposition papers. Therefore, the debtor waived the claim. The Court did not find the debtor’s claim to be meritless or for the purpose of harassing the law firms, so it denied an award of fees to the law firm.

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