On June 30, in Miljkovic v. Shafritz and Dinkin, P.A., the United States Court of Appeals for the Eleventh Circuit held in a case of first impression that representations made by an attorney in court filings during the course of debt-collection litigation are actionable under the Fair Debt Collection Practices Act (“FDCPA”) but that they are subject to a specific standard for liability.
The defendants, debt-collection attorneys, obtained a continuing writ of garnishment from a Florida state court against the plaintiff’s wages, stating that the plaintiff was the “head of household.” The plaintiff disputed that representation. The defendant ultimately filed a motion to dissolve the writ of garnishment, which was granted.
The plaintiff then sued in the United States District Court for the Middle District of Florida, claiming that the representation made by the defendant in the garnishment constituted deceptive, harassing behavior that violated the FDCPA. The defendants filed a motion to dismiss, contending that the statement in the garnishment was a procedural filing directed to the state court and plaintiff’s counsel, not to the consumer, and was therefore not the type of conduct that the FDCPA was meant to regulate. The district court agreed and the plaintiff appealed.
The Eleventh Circuit overturned the district court’s finding that the FDCPA did not apply to the defendant’s conduct before the state court. It held that the FDCPA mandates that its provisions apply to lawyers and law firms who engage in debt-collecting litigation, and prohibits abusive conduct even when the debt-collecting activity is directed at someone other than the consumer. However, the court ultimately affirmed the dismissal of the plaintiff’s complaint because it did not find the defendant’s statement in the garnishment filing amounted to be abusive, deceptive or unfair, and therefore it did not violate the FDCPA.
Troutman Sanders, LLP has extensive experience in defending cases under the FDCPA. It will continue to monitor this case and like developments.