In Simon v. FIA Card Services, N.A., the United States District Court for the District of New Jersey addressed whether the defendants engaged in false, misleading, or deceptive conduct in connection with their service of a subpoena for a Rule 2004 examination in the context of a bankruptcy proceeding. In granting the defendants’ motions for summary judgment, the court made two significant holdings that may be of broader application for entities defending claims of misrepresentations under the FDCPA.
First, the district court held that although technically inaccurate, a statement in the subpoena that the subpoenas had been served on the plaintiffs at their home address was immaterial and thus was not actionable under the FDCPA. The court recognized that multiple Circuits, including the Second, Fourth, Sixth, Seventh, and Ninth, as well as district courts within the Third Circuit, have all included a materiality component when assessing FDCPA claims.
Second, because the subpoenas in question were served on an attorney, the court applied a “competent attorney standard” to evaluate the claim that the subpoenas were false and deceptive. The district court acknowledged that the Third Circuit had rejected the “competent attorney” standard in other FDCPA contexts. However, because the issue in the case was whether the recipient was “misled” by the subpoena, and because the recipient was an attorney, the district court agreed with other Circuits that have held that the least sophisticated debtor standard is inappropriate for judging communications with lawyers.