Judge Grants MTD in FDCPA Case Over Use of Word ‘Summons’

A District Court judge in Pennsylvania has granted a defendant’s motion to dismiss after it was sued for violating the Fair Debt Collection Practices Act when one of its representatives used the word “summons” during a conversation with the plaintiff, who had been sued by the defendant to recover an unpaid debt.

A copy of the ruling in the case of Ohai v. Patenaude & Felix can be accessed by clicking here.

The defendant, on behalf of the original creditor, filed a lawsuit to collect on an unpaid credit card debt of $4,802.92. Six weeks after the suit was filed, the plaintiff contacted the defendant, announced that she was recording the call, and offered to settle the debt for $500. The representative of the defendant declined the offer and the plaintiff said she would have to call back. She called back two weeks later, again seeking to settle the debt, and again announcing that she was recording the call. The representative said, “[W]e have a current balance of the suit that was filed for $4, 802.92. Did you receive that summons?”

The plaintiff tried to settle the debt for $1,000, which was declined. The representative offered to settle for $1,300, but the plaintiff countered with $1,200. When that offer was declined, the plaintiff ended the call.

She subsequently filed suit, accusing the defendant of violating Section 1692e of the FDCPA because the use of the word “summons” was misleading and confusing.

While first determining that even a least sophisticated consumer would not have been misled by the question asking if he or she had received a summons, Judge Karen Marston of the District Court for the Eastern District of Pennsylvania then looked at all the reasons why the plaintiff in this case would not be considered a least sophisticated consumer. Repeatedly attempting to negotiate a favorable settlement, announcing that she was recording the calls, and the fact that she had previously filed FDCPA lawsuits left Judge Marston “hard pressed to describe” the plaintiff as a least sophisticated consumer. “But even if she were, her subjective feelings and beliefs upon hearing the word ‘summons’ used by the [defendant] would not be relevant to whether Defendants violated the FDCPA,” Judge Marston wrote. “The least sophisticated debtor standard is an objective one — it asks not what the actual plaintiff believed, but whether a hypothetical debtor would have been misled or deceived. This objectivity is important; it protects debt collectors from the avarice of unscrupulous debtors who might misrepresent their actual state of mind and ensures that debt collectors treat debtors in a manner that is consistent and fair. Therefore, what Ohai subjectively believed regarding the use of the word “summons” in her phone call is irrelevant to whether P&F’s conduct violated the FDCPA.”

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