In Tourgeman v. Collins Financial Services, Inc., 2012 WL 3731807 (S.D.Cal. 2012), Judge Bencivengo rejected a Plaintiff’s FDCPA claim grounded on a Creditor’s collection firm’s misidentification of the creditor and account number in collection correspondence and, ultimately, in a collection lawsuit. Judge Bencivengo addressed the liability of the creditor/debt collector for this mistake. Judge Bencivengo found the misidentification not material and, therefore, not actionable.
In order for the Court to find that Defendants have violated the FDCPA, it must find that the allegedly false or misleading statements at issue were “material.” Donohue, 592 F.3d at 1033 (holding that false but non-material representations are not likely to mislead the least sophisticated consumer and therefore are not actionable under § 1692e or 1692f). “In assessing FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer’s ability to intelligently choose his or her response.” Id. at 1034. . .Taken as a whole, the Court is not persuaded that the misidentification of the original creditor, or the account number, in this case would “frustrate a consumer’s ability to intelligently choose his or her re-sponse.” Donohue, 592 F.3d at 1034. . . . Because the original creditor and account number misidentifications were not material, the Court also finds that the Paragon Way letters were not unfair or unconscionable under § 1692f. See Donohue, 592 F.3d at 1033.
Judge Bencivengo suggested that the law firm had no liability for third party disclosure by substitute serving the Plaintiff’s father with the Complaint instead of the Plaintiff himself. Ultimately, however, the Court found in the law firm’s favor on the bona-fide error defense instead of making a finding that debt collectors do not violate the FDCPA by utilizing state-law substitute service rules.
Plaintiff cites no authority to support his contention that service of a complaint via substituted service to a family member is a violation of § 1692c for improper third party communications, nor is the Court aware of any. While Plaintiff appears to concede that proper substitute service may be within the realm of proper third party communications under the FDCPA, he argues that because Plaintiff didn’t actually reside at his parents’ home, the substitute service was ineffective, and therefore the statute was violated. He also argues that a triable issue of fact exists because Plaintiff’s father testified that he told the process server that his son didn’t live there and the process server served him anyway. . .The Court finds that Nelson & Kennard has met its burden to demonstrate that any violations of the FDCPA with respect to service and venue were unintentional and resulted despite the existence of procedures reasonably adapted to prevent the error. In the absence of evidence to the contrary, the Court finds that Nelson & Kennard is entitled to the bona fide error defense, and summary judgment is GRANTED in its favor as to 15 U.S.C. §§ 1692c and 1692i.
Finally, Judge Bencivengo rejected the ipso facto rule – namely, that a debt collector who does not prevail on a collection lawsuit ipso facto violates the FDCPA.
Plaintiff argues that a question of fact exists as to whether or not he paid his debt in full; but even if there was, it is not material to determining whether or not the lawsuit was harassing or oppressive sufficient to justify a violation of § 1692d. Indeed, as Judge Sammartino observed previously in this matter, it is not unlawful to file a complaint that contains factual allegations that do not ultimately prevail at trial. [Doc. No 58 at 8.] Plaintiff provides no evidence as to how the lawsuit itself was unduly harassing.