Here, the Sixth Circuit additionally ruled that an attorney cannot be liable for a clerical error in a complaint filed against a debtor.

The creditor’s attorney misstated the balance owing to the creditor in the complaint and debtor filed an answer to the complaint alleging the balance owing was incorrect.

The parties settled their differences and, thereafter, debtor filed an action in Federal Court against creditor’s attorney, alleging violations of the FDCPA.

Creditor’s counsel filed a motion for summary judgment and the Federal Court dismissed debtor’s complaint, finding no violation of the FDCPA.

Debtor appealed the dismissal of his action against creditor’s attorney. On appeal, the court noted that the Act does apply to collection attorneys, but found that to accept debtor’s rationale would prevent attorneys from engaging in the regular practice of law to collect debts.

Debtor argued that since Scott v. Jones, 964 F.2d 314, held that an attorney who files a collection action in the wrong venue violates the Act, that a misrepresentation of the amount owing in the complaint also violates the act.

The Act provides that any collection action be brought either in the judicial district in which the consumer signed the contract or in which the consumer resides.

The appellate court found that the Act applies to attorneys when they are collecting debts, and not when they are performing tasks of a legal nature, such as filing a complaint against the debtor. An application of the Act, as debtor argues, would prevent attorneys from engaging in the practice of law.

The court ruling affirmed a dismissal of debtor’s complaint against creditor’s attorney and found no violation of the Fair Debt Collection Practices Act. Green v. Hocking, No. 92-1794.

However, this court held that the Act does not apply to an attorney who simply files a complaint against a debtor to collect a debt.

The Fair Debt Collection Practices Act [FDCPA] applies to collection attorneys and “debt collectors”.  It imposes technical requirements concerning “communications” made in the course of collecting a debt. Several courts have held that the Act applies to attorneys who send “demand letters” to debtors.

Author: Charles R. Harroun, Attorney at Law