Judge Grants MTD in FDCPA Case Over Lack of Disclosures in Court Pleadings

A District Court judge in Florida has granted a motion to dismiss filed by a series of defendants after they were sued for allegedly violating the Fair Debt Collection Practices Act because they failed to disclose that communications were coming from a debt collector in legal filings related to a lawsuit that was filed against the plaintiff for an unpaid debt.

A copy of the ruling in the case of Rivas v. Pollack and Rosen, Portfolio Recovery Associates, and David Kaminski, can be accessed by clicking here.

The plaintiff was sued by PRA and Pollack and Rosen for an unpaid credit card debt. During the process, the plaintiff claims he was served with a motion for a telephonic appearance by the defendant’s (in this case, the plaintiffs) counsel and a motion for voluntary dismissal filed by the counsel and Kaminski. The plaintiff claims that because neither motion included a disclosure that the documents were coming from a debt collector violated a number of counts of the FDCPA.

In looking at similar cases that were filed in the Southern District of Florida, Judge Beth Bloom found a precedent — D’Altilio v. Noam J. Cohen, P.A. — in which a judge ruled that litigation documents are formal pleading documents as set forth in Section 1692e(11) of the FDCPA and that a “narrow” interpretation of what constitutes formal pleading documents was not called for.

“…a broader application of the formal pleading exception applies.,” Judge Bloom wrote. “This Court, therefore, joins in the D’Altilio Court’s reasoning that to limit the exception’s application solely to the documents outlined in Federal Rule of Civil Procedure 7(a) would be illogical. Such application would frustrate Congress’ clear intent of the FDCPA, which in part was to ensure that a debtor was aware of when a debt was being collected against him. Plaintiff cannot reasonably, nor in good faith, argue that he was not aware that a debt was being collected against him once a lawsuit was initiated against him for that very purpose.

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