Siwulec v. J.M. Adjustment Services, LLC

Summarized by Michael Herz , Fox Rothschild LLP
14 years 3 weeks ago

Citation:

Slip Opinion, Case No. 11-2086, March 1, 2012

Tag(s):

Ruling:

NOTE: This opinion is stamped as "Not Precedential" and is not an appeal of a case originally filed in bankruptcy court, but of a class action complaint filed originally in the District of New Jersey under the Fair Debt Collections Practices Act. The Third Circuit ruled that the District Court had erred in two respects its analysis of whether the appellee was a debt collector under the FDCPA. First the District Court focused on whether the appellee's actions were deceptive, but the FDCPA definition of debt collector makes no reference to such an inquiry. Rather, the FDCPA mandates that certain disclosure are made regardless of deception. Second, contrary to the District Court's finding, the appellant's complaint included allegations that would indicate that the appellee was more than just a messenger, including allegations that the appellee's website promoted its services to debt collectors and advertised as being FDCPA compliant. The instructions dropped by the appellee on the appellant's lawn also indicated that the appellee had contracted with Chase to gather information in furtherance of debt collection. In addition, the conduct of the appellee's representatives, notably urging debtors to call creditors as the agent watches, gathering information directly from debtors, speaking with neighbors of debtors, and conducting visual assessments of debtors' properties, all indicated that the appellee was more than just a messenger and instead is subject to the FDCPA as a debt collector. As such, the Third Circuit determined that the appellant's complaint stated a plausible claim of relief to survive a motion to dismiss under the two-part test from Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

Procedural context:

Appeal of ruling by District Court of New Jersey dismissing under Fed.R.Civ.P. 12(b) a complaint brought under the Fair Debt Collections Practices Act (the "FDCPA"), as appellee was found to be a messenger rather than a debt collector as defined by the FDCPA.

Facts:

A representative of the appellee, J.M. Adjustment Services, LLC ("JMAS"), personally served the appellant with a letter from the appellant's lender, Chase, which sought information from the appellant to assist in resolving an allegedly past due mortgage loan. Appellant alleged that the JMAS agent dropped instructions on the appellants lawn, at no point did the JMAS agent make any of the disclosures required under the Fair Debt Collections Practices Act ("FDCPA"), and noted that JMAS' website claims to be FDCPA compliant.

Judge(s):

Honorable John E. Jones, III (District Judge for the United States District Court for the Middle District of Pennsylvania, sitting by designation).

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