If you've read any of our articles on this blog, you'll know that one of our pet peeves is attorneys and debtors who file questionable FDCPA claims. The usual motive is to bully creditors into settling the file versus spending thousands in defensive litigation. The parties continue to bring these suits, in part, because the strategy has worked so well in our era of high creditor distrust and heightened consumer protection. It's refreshing to see the tide being turned somewhat.
In one recent case, Wells Fargo fought back and, after the pro se debtor appealed the federal court’s dismissal of his amended complaint, the Eleventh Circuit Court of Appeals affirmed the federal court’s dismissal. In other words, Plaintiff's complaint was dismissed, for good.
In Kinlock v. Wells Fargo Bank, N.A., Dudley Kinlock (“Kinlock”), the above-mentioned debtor, filed a FDCPA and FCCPA complaint after Wells Fargo’s agent left a letter in Kinlock’s mailbox and on his front door offering various sums of financial assistance if he vacated his property, which had been sold at a foreclosure sale, by a date certain. 636 Fed. Appx. 785, 786 (11th Cir. 2016).
In analyzing Kinlock’s claim, the Court pointed out that, “[i]n order to state a plausible FDCPA claim, ‘a plaintiff must allege, among other things, (1) that the defendant is a debt collector and (2) that the challenged conduct is related to debt collection.”’ Id. at 787 (quoting Reese v. Ellis, Painter & Adams, LLP, 678 F. 3d 1211, 1215 (11th Cir. 2012). The Court further added that, “[t]he FDCPA and FCCPA, Florida’s analogue to the FDCPA, have certain parallels, as both relate to consumer protection against creditors, and include nearly identical definitions of ‘communication,’ ‘debt,’ and ‘debt collector.”’ Id.
The Court, in determining whether or not Kinlock had a plausible FDCPA and FCCPA claim, concluded that Kinlock’s “argument is frivolous.”Id. at 788. “All the facts show is that Wells Fargo, through [its agent], attempted to leave notices informing Kinlock that he was eligible to receive financial relocation assistance. Kinlock did not allege that anyone ever asked him for payment for a debt, or told him that he had an obligation to pay Wells Fargo for a debt.” Id. at 787-788.
The court made the right call, and it's our hope that cases like this will continue to have a chilling effect on frivolous cases that do nothing more than consume taxpayer dollars by clogging our courts.
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