Judge Calls Out Plaintiff, Defendant For Frivolity, Delays

As someone who is not a lawyer nor a compliance expert, it can be difficult to determine when to write about court rulings and when not to. Writing about a court ruling shines a spotlight on a particular case, and it can be irresponsible and wasteful to shine a spotlight on a case that does not set a precedent or is not something that the industry needs to concern itself with. Deciding when to write about a legal verdict is not akin to just throwing spaghetti at the wall and hoping something sticks. I don’t want to be the news site that cries wolf every time a court ruling comes my way.

So, in advance, I’m going to say that this case likely is not precedent setting, nor is it a man-bites-dog kind of event. What it is, though, is a judge calling out a plaintiff for trying to manufacture a case when one did not exist. And while the judge does also take the defendant to task for trying to show that “it won’t be pushed around,” the words that are saved for the plaintiff could potentially be used by other defendants down the line.

In this particular case, a plaintiff, Levi Huebner, sued Midland Credit Management for allegedly violating the Fair Debt Collection Practices Act when Midland tried to collect on a $131 debt it had purchased from Verizon for work that the plaintiff had done on his telephone line. The plaintiff alleged that the defendant said that a dispute on a debt could only be filed in writing, even though, on a call recorded by the plaintiff, the defendant never made such a claim. The plaintiff subsequently filed amended complaints making other accusations.

Plaintiff pursued his FDCPA claim against defendant long after it was clear that he did not have a viable claim. Plaintiff initially argued that defendant required him to submit a writing before it would allow him to dispute his debt, even though his very own recording of the phone call proved that was not true. Plaintiff responded to this point by alleging that the debt was invalid and that he had not received certain documents, like the cancellation notice, from defendant even though they were mailed to his address. By the time the case reached the class certification stage, plaintiff was alleging a new theory based on the operative third complaint — namely that the FDCPA had been violated in part because defendant did not mark his debt as disputed, did not inform the CRAs to mark the debt as disputed, and because he was asked questions when he sought to dispute his debt. All of these positions were either factually without basis or legally wrong.

The plaintiff also tried to convince the judge that he was a “tester,” trying to determine whether the defendant was complying with the FDCPA. The judge was having none of that.

But more fundamentally, if one is going to be a “tester” to assess compliance with any statute, it should go without saying that one must administer a test that has at least a semblance of relevance and fairness, or else the test has no probative value. Here … plaintiff’s conduct was the antithesis of that which the “least sophisticated consumer” would have undertaken. He deliberately ran the collection agent in circles in an effort to confuse her. The least sophisticated consumer would answer a simple question simply, or at least say that he was declining to answer. He would not seek to embroil a collection agent in an existential discussion of the meaning of the word “non-existent.”

At the same time, the judge chastised Midland for drawing out the process and not responding in a timely matter to discovery requests. At the end of the day, the judge had had enough.

Both sides therefore lost sight of the forest for the trees. It may be that defendant, whose business requires it to regularly defend FDCPA cases, saw an opportunity to use this case, once I pointed out that plaintiff’s effort at entrapment had failed, to make its own point to both this plaintiff and future plaintiffs that it won’t be pushed around. If so, that is just as bad a misuse of the litigation process as plaintiff’s misuse in bringing this case. I am not inclined to impose “a pox on both houses,” since plaintiff started and unreasonably pursued this action, but I do hold both sides responsible in different degrees for the expansion of this $131 case beyond all reason.


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