Trial Court Slams Professional Plaintiff, Awards Defendant Attorney’s Fees

Earlier this month, a Judge in the Eastern District of New York granted summary judgment to a defendant on technical e(11) violations finding that “his grievance is not merely meritless, it is frivolous.”[1]  In his decision, the Judge reiterated an observation that he had made seven years ago describing a rising tide of FDCPA complaints brought by a  “cottage industry” of “professional plaintiffs” who file suits for violations of the FDCPA.[2] BK-Court

In this case, the Plaintiff called the Defendant’s office and heard a recorded message identifying the Defendant as a debt collector and informing the Plaintiff that its communications were attempts to collect a debt.  Plaintiff entered into a settlement agreement with Defendant and Defendant agreed to call back later to confirm the settlement.  When Defendant called back later it left a message that identified itself but did not contain the e(11) disclosure.  The next day, Plaintiff called Defendant and again heard the recorded message with the e(11) disclosure, spoke with Defendant and finalized the settlement.  In addition, Defendant sent a letter to Plaintiff confirming the terms of settlement and said letter advised that it was a debt collector and that the communication was an attempt to collect a debt.  When the Plaintiff failed to submit his payments pursuant to the terms of the settlement, Defendant placed calls to Plaintiff and left messages that did not include the e(11) disclosure.

The court noted that Plaintiff was well aware of the Defendant’s status as a debt collector and that this type of conduct was decidedly NOT what the FDCPA was designed to protect against.  Further, it was evident from the record that Plaintiff was notified three times within the span of two days that the Defendant was a debt collector.  Citing the legislative history of the FDCPA, the Court reasoned that Plaintiff was not seeking redress for any of the abuses contemplated in the Senate Report but rather that his only complaint was that the Defendant did not disclose in every communication to him that it was a debt collector.

The court found that the Plaintiff was not the most gullible consumer and was exactly the hypothetical consumer that he envisioned seven years earlier.  Furthermore, the court took judicial notice of the fact that Plaintiff filed four additional complaints against other debt collectors on the same day as the one at hand, all of which alleged essentially the same claims.  As a result, the court granted the Defendant’s motion for attorney’s fees and costs.

The decision is available here.



[1] Majerowitz v. Stephen Einstein & Assocs., P.C., 2013 U.S. Dist. LEXIS 115664, *8 (E.D.N.Y., Aug. 15, 2013)

[2] Id. (citing Jacobson v. Healthcare Fin. Servs., Inc., 434 F. Supp. 2d 133, 138-39 (E.D.N.Y. 2006)

 

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Tom Dominczyk is based in Maurice Wutscher's New Jersey office and supports the firm's matters in its New York and Pennsylvania offices, practicing in the firm's Commercial Litigation, Consumer Credit Litigation and Bankruptcy groups. Tom has successfully represented financial institutions and law firms throughout the country for claims filed under the Fair Debt Collection Practices Act, Fair Credit Reporting Act and various state consumer protection statutes. In addition to his litigation practice, Tom represents national, regional and local creditors in a variety of bankruptcy matters ranging from the defense of adversary actions to complex non-dischargeability litigation and preference defenses. He served as a Judicial Clerk to the Honorable Graham T. Ross, P.J.F.P., Superior Court of New Jersey, Somerset County.