Monday, March 10, 2008

debt collection - FDCPA - verification of complaint by counsel - Pa. RCP 1024(c)

Phath v. Watson - ED Pa. - March 7, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0266P.pdf

Plaintiff, a former university student, sued the attorney who represented plaintiff's university in a state court suit for a tuition debt. Plaintiff alleged that the attorney violated the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq. by verifying a complaint as to which he had no personal knowledge and without complying with Pa. R.C.P. 1024(c), which requires a non-party verifier to "set forth the person's information as to matters not stated upon his knowledge and the reason why the verification is not made by a party." http://www.pacode.com/secure/data/231/chapter1000/chap1000toc.html#1024.

The attorney verified the state court complaint upon "knowledge, information and belief" but did not include the statements required by the Rule 1024(c). Plaintiff claimed that this made his verification false, deceptive and misleading, and rendered his actions unfair and unconscionable, by creating a false impression as to the source, authorization or approval of the state court complaint.

The court rejected defendant's argument that the FDCPA does not apply to litigation activities, including formal pleadings by attorneys, citing Heintz v. Jenkins, 514 U.S. 291, 294 (1995) and Piper v. Pornoff Law Assoc., 396 F.3d 227 (3d Cir. 2005), but granted his motion to dismiss, because the state rule allowed the attorney to verify the complaint on "information and belief" - a phrase the court said that plaintiff was trying to read out of the rule. The attorney's failure to follow Rule 1024(c) "to the letter" was held to not be deceptive, since the attorney's statement could reasonably have only one meaning.

The court also held that the verification did not create a false impression as to source, authorization or aapproval. Even though the verification did not strictly comport with the language of the rule, "this procedural error does not create a false impression....Moreover, this error if one that courts in Pennsylvania hold to be de minimis. Monroe Contract Corp v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979).

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