FDCPA Class Action Filed Over Whether Attorney was Acting as Collection Agency

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DISCLAIMER: This article is based on a complaint. The defendant has not responded to the complaint to present its side of the case. The claims mentioned are accusations and should be considered as such until and unless proven otherwise.

Having read a fair number of complaints invoking allegations of the Fair Debt Collection Practices Act, there are a lot of similar points in the collection process where a plaintiff feels that he or she has been wronged. This, however, is the first complaint I can remember where the two sides disagreed over the fundamental component of the FDCPA — whether the defendant was a collector and whether an outstanding balance is, in fact, the same thing as an unpaid debt. What makes this case even more interesting is that it is a class action and the shots that attorneys on both sides take at one another in their communications with each other.

A copy of the complaint, filed in the District Court for the Eastern District of New York, can be accessed using case number 23-cv-01527 or by clicking here.

Essentially, the plaintiff went to a client of the defendant for non-invasive, non-surgical, appearance enhancement procedures. The plaintiff allegedly financed a portion of the procedure, but still owed the client $3,000, which she did not pay.

The defendant sent the plaintiff a letter, indicating the balance was due and if it was not paid, a lawsuit would be filed to recover the balance. The letter also informed the plaintiff that she had attempted “theft of service” by contacting the finance company and filing a “misleading” dispute, according to the letter. The plaintiff apparently claimed not to have received the service in question.

Three days later, an attorney representing the plaintiff sent the defendant a letter, informing the defendant that all collection and communication efforts were to cease and desist, that the plaintiff was disputing the debt, and that if the client planned to report the debt to the credit reporting agencies, it should mark the account as disputed.

This is where things get good.

A week later, the defendant sent the plaintiff’s attorney another letter, informing them that they are not a collection agency. “Had you done your homework you would have realized our firm doesn’t do collections,” the defendant wrote, asking the attorney to whom the summons and complaint should be sent.

The next day, the plaintiff’s attorney sent the defendant a letter, “disagreeing with your self-serving determination.” The attorney renewed the dispute, reiterated the cease-and-desist request, and revoked consent to be contacted on her mobile telephone, land line, social media, email, or to any facsimile device.

The defendant wrote back, accusing the plaintiff of having “no idea what you are talking about.” The letter goes on to “educate” the plaintiff’s attorney about the situation in pretty specific detail.

At this point, the plaintiff filed her lawsuit, accusing the defendant of violating Sections 1692e, 1692e(2)(A), 1692e(2)(B), 1692e(7), 1692e(10), 1692e(11), 1692f, and 1692g of the FDCPA. The complaint seeks to include anyone who received similar communications from the defendant.

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