Judge Grants MSJ for Defendant in FDCPA Case Over Mistaken Identity

If cases of mistaken identity weren’t a real thing, there wouldn’t be so many movies written about it. What matters, though, to companies in the accounts receivable management industry is what you do after you find out you might be trying to collect from the wrong person. If done correctly, the movie that would be written about the situation would be very boring. And that’s exactly why a District Court judge in Texas has granted a defendant’s motion for summary judgment in a Fair Debt Collection Practices Act case.

A copy of the ruling in the case of Richard v. Portfolio Recovery Associates can be accessed by clicking here.

The plaintiff answered a call that was placed by the defendant. The defendant had been calling the plaintiff for quite some time, but the plaintiff had never picked up the phone before this particular exchange. The representative of the defendant asked if she was speaking to “Deborah Richard” and the plaintiff told her that she was. The representative then verified the address on the account. The plaintiff then asked what the call was regarding, and was told that it was a debt owed to a retail credit card account. The plaintiff told the agent that she had never had an account with that particular retailer, at which point the representative started asking questions to figure out what was going on. The representative asked to confirm the date of birth on the account, at which point the plaintiff realized the representative was looking for the plaintiff’s daughter, who had the same name, occasionally lived at the same address as the plaintiff, and whose date of birth matched what was on the account.

Nonetheless, the plaintiff sued the defendant, arguing that it violated Section 1692e(2)(A) of the FDCPA because it attempted to collect a debt that was not owed by the plaintiff. But in looking at the transcript of the call, did the representative ever try to collect? Furthermore, when deposed, the plaintiff admitted that the representative never asked for her to make a payment toward the debt.

“Even the least sophisticated consumer would be able to understand Defendant’s actions — after confirming that Plaintiff was not the debtor associated with the account — were not false representations of the character, amount, or legal status of the debt,” wrote Judge Andrew S. Hanen of the District Court for the Southern District of Texas.

Taking the ruling a step further, even if the defendant had violated the FDCPA, it would have been entitled to the statute’s bona fide error defense, Judge Hanen ruled.

“Defendant can hardly be expected to know there were two women named ‘Deborah Richard’ living at the same address until someone informed them of that,” he wrote. “Moreover, Defendant could hardly be expected to know the daughter’s correct phone number if her own mother did not know it. It is clear that Defendant’s procedures to verify contact information (such as asking for date of birth) cleared up the confusion, demonstrating that the procedures in place were clearly reasonably adapted to prevent error.”

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