Yet another judge in the Eastern District of New York has identified the misuse of the Fair Debt Collection Practices Act (FDCPA) by plaintiffs and their counsel by filing claims that are more "lawyer's cases" rather than actual genuine issues faced by the least sophisticated consumer. We've seen this before in several cases, such as Campagna v. Client Servs. with Judge Cogan, and now we have another case by yet another judge to add to the list.
In Dicristo v. Nat'l. Recovery Solutions, LLC, No. 19-cv-2470 (E.D.N.Y. May 4, 2020)—a case filed by one of the "frequent filer" plaintiffs' firms—Judge Seybert dismissed the case for what she described as "Plaintiff’s attempt to contort the language of the Letter to fit within Carlin" when the case is not applicable.
Background on Carlin
For a quick refresher, Carlin states that if a debt collector provides an estimated payoff amount, it must also provide a calculation of that amount. However, the courts in New York—including the Second Circuit—have clearly stated that Carlin is inapplicable when the actual amount due as of the date of the letter is listed.
So what hypertechnical argument did plaintiff make in Dicristo? The letter in question contained the debt itemization as required in New York, including a "current balance." The itemization lists a collection agency fee, which had an asterisk note stating that this amount may decrease at the time of payment. The letter also included the Avila safe harbor language stating that the amount due is as of the date of the letter and, because of interest and fees, the amount may increase.
First, plaintiff argued that stating the letter fails to adequately state the amount due because the fees and costs are estimates, and estimated amounts fall under Carlin. The court rejected this argument. In Carlin, the letter only stated the estimated pay-off amount and did not list the amount owed as of the date of the letter. That was not the case here—the letter clearly stated the amount owed. The court likewise rejected the argument that identifying the amount as a "current balance" somehow implies that the amount is an estimate.
Second, the court rejected plaintiff's argument that the letter was somehow false or misleading because it stated that the collection agency fee might decrease. Plaintiff argued that the fee could only increase. Defendant clarified, however, that the collection agency fee was based on a percentage of the amount paid by the consumer. If the consumer pays the debt in full, the amount listed would be the collection agency fee. However, if the consumer settled the account for less than the full balance, the collection agency would be lower.
The court granted the defendant's motion to dismiss the entire suit.
There are MANY decisions where the court found that plaintiffs' counsel are misusing the FDCPA. Want to find them all quickly? The iA Case Law Tracker can help you do that in less time than it takes to pour your morning cup of coffee.