Levi Huebner (“Huebner”) and his original attorney thought they could make a quick buck at the expense of Midland Credit Management (“Midland”), one of the largest debt purchasers in the country, after it purchased a $131.00 debt that Huebner owed Verizon. Huebner v. Midland Credit Mgmt., 2016 U.S. Dist. LEXIS 73211, *1 (E.D.N.Y. June 3, 2016).
Huebner made two (2) recorded phone calls totaling fifteen (15) minutes in order to bait Midland’s representative in order to commit technical violation(s) of the Fair Debt Collections Practices Act (“FDCPA”). Huebner v. Midland Credit Mgmt., 85 F. Supp. 3d 672, 674 (E.D.N.Y. 2015). Huebner, through his original attorney, filed a lawsuit against Midland, alleging two (2) trivial violations. Id. at 675. The judge, in reviewing the evidence, found that, “[t]h[e] case has all the earmarks of a setup. [Huebner] and his lawyer decided they were going to outsmart the collection company and make a little money while at it.”Id. (Emphasis supplied).
Despite warnings from the judge, Huebner and his attorneys pressed on by filing three (3) amended complaints and moving for class certification, meaning a class action lawsuit. Huebner, 2016 U.S. Dist. LEXIS 73211 at *1. Midland responded by filing a motion for summary judgment. Id. The judge denied Huebner’s motion for class certification and granted Midland’s motion for summary judgment. Id. at *30-31.
In rare instances the FDCPA allows judges to award defendants in FDCPA cases their attorneys’ fees and costs “[o]n finding by the court that an action … was brought in bad faith and for the purpose of harassment, …” 15 U.S.C. §1692k(a)(3). A “[d]defendant must provide evidence of plaintiff’s bad faith (as opposed to counsel’s bad faith) and proof that the suit was instituted for the purpose of harassment.” Huebner v. Midland Credit Mgmt., 2016 U.S. Dist. LEXIS 156246, *7(E.D.N.Y. Nov. 10, 2016)(quoting Hasbrouch v. Arrow Fin. Servs., LLC, U.S. Dist. LEXIS 53938, *20 (N.D.N.Y. 2011)(internal citations omitted).
In the case at bar, the judge opined that Huebner’s claim(s) were not viable from the onset and that Huebner and his original attorney should have known that there were not viable FDCPA claim(s). Id. at *12-13. However, the judge also opined that Midland “saw an opportunity to use this case, once [he] pointed out that plaintiff’s effort at entrapment had failed, to make its point to both this plaintiff and future plaintiffs that it won’t be pushed around.” Id. at *18-19. As a result, the judge issued a monetary sanction on Huebner and his original attorney for Midland’s attorneys’ fees and costs incurred with pursuing a motion for sanctions and opposing a motion for class certification. Id. at *19.
This matter illustrates that it is possible for creditors and collection agencies to receive their attorneys’ fees and costs when debtors file frivolous FDCPA lawsuits. That being said, creditors and collections agencies should never use the courts to send a message to debtors and their attorneys, even if the FDCPA claim(s) are baseless.
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