Judge Denies Defendant’s Motion in FDCPA Bankruptcy Case

A District Court judge in Florida has denied a defendant’s motion for judgment on the pleadings in a Fair Debt Collection Practices Act case for allegedly disregarded cease-and-desist letters sent by an individual after receiving text messages and collection letters from the defendant while the individual had a pending bankruptcy petition.

A copy of the ruling in the case of Storey v. Capital Link Management can be accessed by clicking here.

The plaintiff filed for bankruptcy protection. While that case was proceeding, the defendant allegedly sent text messages to the plaintiff to collect on the debt. The plaintiff responded with a cease-and-desist letter. The defendant then allegedly sent a collection letter. The plaintiff responded again with a cease-and-desist letter. The defendant then allegedly sent four more collection letters, after which the plaintiff filed suit against the defendant, alleging violations of both the FDCPA and the Florida Consumer Collection Practices Act.

The defendant’s argument in filing its motion for judgment is that the plaintiff failed to disclose her lawsuit in her bankruptcy case, which would mean that the FDCPA case could be dismissed on the grounds of judicial estoppel. But, the plaintiff did not intentionally intend to deceive the court and actually requested to retain counsel because she had a claim against a creditor and “properly sought approval from the Bankruptcy Court before retaining counsel to pursue it,” wrote Judge Sheri Polster Chappell of the District Court for the Middle District of Florida. “If Storey intended to deceive creditors or others in bankruptcy, filing the Application strayed from that intent. And the filing mitigates any prejudice claimed by Capital as a creditor and Defendant.”

Judge Chappell did allow for the defendant to raise judicial estoppel later in the case “should the record support it,” and also warned the plaintiff to “make it crystal clear” the the bankruptcy court judge that “this case is ongoing” because it represents “one of Storey’s most valuable assets.”

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