FDCPA Attorney Gets Hammered Twice After Suing Collections Law Firm for Simply Representing its Clie
Consumer attorneys are notorious for filing Fair Debt Collections Practices Act (FDCPA) lawsuits. The idea is that the lawsuits will quickly settle once filed as it's often cheaper to settle than to litigate a FDCPA lawsuit. Many of these FDCPA lawsuits have no legal basis. Recently, a lawsuit was appealed all the way to the Eleventh Circuit Court of Appeals, which ruled in favor of a collections law firm that was sued for simply representing its client in court.
In Miljkovic v. Shafritz & Dinkin, P.A., Shafritz and Dinkin, P.A. and Mitchell A. Dinkin (collectively referred to as the “Law Firm”) obtained a state court judgment against Nedzad Miljkovic (“Miljkovic”) over an unpaid automobile loan from a local credit union. 791 F. 3d 1291, 1294 (11th Cir. 2015). The Law Firm filed a motion seeking a continuing writ of garnishment against his wages, and Miljkovic filed a claim of exemption pursuant to F.S. §222.11 and an affidavit in support of his claim of exemption, claiming that he was head of family and thus exempt from garnishment. Id. at 1295.
The Law Firm responded to the affidavit and claim of exemption by filing a sworn reply, pursuant to F.S. §77.041(3), denying his claim of exemption and propounded discovery to him. Id. Miljkovic partially responded to the discovery, and the Law Firm reached out to him to see if he would be interested in settling the matter. Id. at 1296. Miljkovic then fully responded to the discovery and noticed the Law Firm, specifically Mitchell A. Dinkin, for a deposition to determine the factual basis for the Law Firm’s sworn reply. Id.
After Mijkovic responded to the discovery and noticed the Law Firm for a deposition, the Law Firm filed a motion to dissolve the continuing writ of garnishment. Shafritz & Dinkin, P.A., 791 F. 3d at 1296. Miljkovic then commenced his FDCPA lawsuit in a federal district court, alleging that the Law Firm’s “sworn reply was an abusive, misleading, and unfair means of collecting on [Miljkovic’s] debt and, as such, violated multiple provisions of the FDCPA.”
The Law Firm immediately moved to dismiss Miljkovic’s law suit, asserting that the sworn reply was not the type of conduct protected under the FDCPA. The district court agreed and “dismissed [Miljkovic’s] complaint on the grounds that the FDCPA did not apply to [the Law Firm’s] conduct before the state court and, even if it did, [Miljkovic] failed to state a claim under the Act.” Id. at 1294.
An appeal to the Eleventh Circuit Court of Appeals quickly followed, where the Court, in agreeing with the federal district court, held that “[Miljkovic’s] complaint fail[ed] to sufficiently allege that [the Law Firm] engaged in conduct prohibited by the FDCPA.” Id. at 1304. While Miljkovic argued that his affidavit should have been sufficient to put the Law Firm on notice that he was head of family and thus exempt from garnishment, the Court correctly pointed out that the Law Firm was “under no obligation to take [his] affidavit as the truest representation of his financial situation.” Shafritz & Dinkin, P.A., 791 F. 3d at 1306-07.
So this time the FDCPA plaintiff's lawyer struck out ... twice! This is a great ruling for the creditor's rights bar and our clients. Kudos to Shafritz and Dinkin.
Founded in 1997, Gill Law Firm represents small, medium and large corporations in commercial debt recovery, small business and nonprofit startups throughout the state of Florida. To find out how the firm may help your company, please contact A. Wayne Gill, Esq. via email at email@example.com or by phone at (561) 454-0301.
#FDCPA #FairDebtCollectionPracticesAct #TelephoneConsumerProtectionAct #TCPA #DelrayBeach #FloridaBasedCollectionsFirm #garnishwages #Section5595531 #WayneGill #MichaelNixon #receivables #judgmentenforcement #Garnishment #smallbusiness #accountspayable #Litigation #debtcollection #loanagreement #registrationrequirement #tenantsincommon #contingentfee #creditors #contract #HeadofFamily #GillLawFirm #Florida #creditorsrights #collections