A District Court judge in Minnesota has denied a defendant’s motion to dismiss a Fair Debt Collection Practices Act class-action, ruling that eviction proceedings are subject to the FDCPA and that the “competent attorney” standard does not apply to communications received before the plaintiff retained a lawyer.
A copy of the ruling in the case of Kowouto v. Jellum Law can be accessed by clicking here.
The plaintiff leased a house and the lease agreement indicated that the plaintiff would be billed separately for his utilities, but the plaintiff alleges he never received any of those invoices. The leasing company started eviction proceedings against the plaintiff. In the eviction action, the complaint stated that the landlord was entitled to payment of all attorney’s fees it incurred, but the lease agreement stated that the prevailing party was entitled to have its legal fees covered, up to $500.
The two parties ended up settling the eviction action, but the plaintiff filed a class-action lawsuit, alleging the law firm violated the FDCPA by claiming that the plaintiff was responsible for all legal fees in the eviction action.
The defendant filed a motion to dismiss, arguing that eviction actions are not subject to the FDCPA, that the representation that was made was immaterial because the plaintiff was represented by counsel, and that the FDCPA does not apply because the communication in question was directed to the court, not the plaintiff.
But none of those arguments convinced Judge Wilhelmina M. Wright of the District Court for the District of Minnesota, that she should grant the defendant’s motion to dismiss.
State law in Minnesota holds that an eviction for nonpayment of rent is equivalent to a demand for that rent, and case law in the state has held that eviction actions are subject to the FDCPA.
Regarding the claim that the representation was immaterial because the plaintiff was being represented by an attorney, the plaintiff had not yet hired an attorney when he received the eviction complaint, Judge Wright noted. So instead of the “competent attorney” argument being in effect, the “least sophisticated consumer” standard still applied.
