In Jensen v. Pressler & Pressler, 2015 WL 3953754, at *1 (C.A.3 (N.J.),2015), the Court of Appeals for the Third Circuit held that the FDCPA’s prohibition against false statements requires materiality, and that such standard is baked into the “least sophisticated consumer” rule.  The facts were as follows.

Paula Jensen defaulted on a Bank of America credit card, and her debt was eventually sold to Appellee Midland Funding, LLC (“Midland”). Midland retained the law firm of Appellee Pressler & Pressler (“Pressler”) to help collect Jensen’s debt. Midland obtained a default judgment against Jensen in the Superior Court of New Jersey in the amount of $5,965.82. Pressler then attempted to collect on that judgment by serving an information subpoena and written questions on Jensen.  The information subpoena and accompanying questions sought personal and financial information from Jensen in aid of collection. It advised that “failure to comply … may result in … arrest and incarceration.” The information subpoena was issued pursuant to Rule 1:9–1 of the Rules Governing the Courts of the State of New Jersey (“New Jersey Rules”), which allows New Jersey attorneys to issue subpoenas in the name of the clerk of court. Information subpoenas issued under this rule properly bear the signature of the clerk, even though the clerk herself did not sign the subpoena and likely does not even have knowledge of it. The information subpoena here was based on the sample “form” in the Appendix to the New Jersey Rules. That form provides space for two electronic or typed signatures: one for the issuing attorney, and one for the clerk. Because Pressler sought to enforce a judgment from the Superior Court of New Jersey, the Superior Court clerk’s name should have appeared on the clerk’s signature line.  Instead, Pressler listed “Terrence D. Lee” on the clerk’s signature line. Lee had never worked as a clerk of the Superior Court, and although he had been the County Clerk of Warren County, he left that position six years earlier. Ironically, Jensen knew Lee, and she also knew that he was not a clerk of the Superior Court. Roughly one month later, Jensen sent a letter to Pressler explaining that she was aware that Mr. Lee was not the Superior Court clerk and calling the subpoena “fraudulent.” However, she also answered the questions that accompanied the information subpoena.

The Court of Appeals found no actionable claim.

Jensen argues that Pressler’s use of Terrence Lee’s electronic signature was a “false … representation” in violation of 15 U.S.C. § 1692e. Jensen is obviously correct as a factual matter, insofar as using Terrence Lee’s name is a “false representation” in the most technical sense of the phrase. The subpoena represents Lee to be the Clerk of the Superior Court of New Jersey, but he was not the clerk and had never held that post. However, Appellees argue that this technically false representation is not actionable under the FDCPA because it is not material. The Court of Appeals for the Seventh Circuit first addressed this issue in Hahn v. Triumph Partnerships LLC, 557 F.3d 755 (7th Cir.2009). There, the court adopted a “materiality” requirement for false, misleading, or deceptive statements under the FDCPA. Id. at 757. A number of our sister Courts of Appeals subsequently adopted such a requirement. See Elyazidi v. SunTrust Bank, 780 F.3d 227, 234 (4th Cir.2015); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033–34 (9th Cir.2010); Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir.2009). No Circuit Court that has addressed this issue has disagreed with Hahn and held that an immaterial false statement made during the collection of a consumer debt is actionable under the FDCPA. This dispute presents our Court with its first opportunity to decide if “false, deceptive, or misleading” statements must be material to be actionable under 15 U.S.C. § 1692e.  Jensen correctly argues that the word “material” does not appear in the statute. However, that is not necessarily outcome determinative. Congress’s intent guides our interpretation of statutes. See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F .3d 364, 367 (3d Cir.2011). Our interpretive task begins and ends with the text of the statute unless the text is ambiguous or does not reveal congressional intent “with sufficient precision” to resolve our inquiry. Id. However, “[w]here the statutory language does not express Congress’s intent unequivocally, a court traditionally refers to the legislative history and the atmosphere in which the statute was enacted in an attempt to determine the congressional purpose.” In re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248, 254 (3d Cir.2009) (citation omitted). Jensen’s reliance on the precise wording of the statute here ignores the fact that materiality requirement is simply a corollary of the well-established “least sophisticated debtor” standard, which courts have routinely applied to alleged violations of § 1692e in order to advance the congressional intent of the FDCPA. Indeed, the parties do not dispute this standard’s validity and application to this case. Yet, that standard, like the disputed materiality requirement, appears nowhere in the text of the statute. As we will explain, we are satisfied that both the least sophisticated debtor standard and the materiality requirement supply a necessary analytical framework and are consistent with the FDCPA’s purpose and legislative history. Because we agree with the District Court that the Collectors did not violate § 1692e, we will affirm.

Jensen v. Pressler & Pressler, 2015 WL 3953754, at *2-3 (C.A.3 (N.J.),2015)