Judge Denies MTD in FDCPA Case

A District Court judge in Texas has denied motions to dismiss filed by three defendants in a Fair Debt Collection Practices Act case, ruling that the one defendant who claimed not to have been properly served with the summons and complaint was, that all of the defendants can be sued in Texas because that is where the plaintiff lived, and that the plaintiff adequately stated a claim.

A copy of the ruling in the case of Noonkester v. Elite Debt Brokers et al. can be accessed by clicking here.

The plaintiff took out a pair of payday loans, which ended up being sold to the same company — one of the defendants. The accounts were placed with agencies for collection, and the plaintiff, his wife, and his nephew began receiving calls “repeatedly” regarding the debt. When the plaintiff returned the call, a representative of the collector said that the plaintiff would be sued if he did not “immediately” make a payment. The plaintiff paid $212 via credit card and he subsequently received an email saying that the matter had been dismissed.

About a year later, the plaintiff sued the defendants, claiming they violated the FDCPA and state law in Texas.

In filing the motion to dismiss, one of the plaintiffs claimed not to have been served properly, saying the process server left the summons and complaint on the front step of his house. But the process server submitted an affidavit that said she rang the doorbell and a man answered, stating his name and the name of his business. “He took the documents and told me to leave,” the process server said. That, combined with the defendant not providing an evidence to rebut the testimony, was enough for Judge Reed O’Connor of the District Court for the Northern District of Texas to deny that claim in the motion to dismiss.

The defendants then claimed lack of personal jurisdiction because none of them live or work in Texas and that contacting an individual in Texas was insufficient to subject them to jurisdiction in that state. As well, the defendants noted, they themselves did not place the collection calls themselves. But because it was an agent of the defendants that placed the calls, that is the same as if the defendants themselves did it, Judge O’Connor noted. Having to litigate the case on Texas would place an undue burden on themselves, the defendants claimed. But Judge O’Connor ruled the defendants did not meet the burden of proving their claim and denied the motion to dismiss.

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