By Richard A. Roth, J.D.
A law firm that supported a rent collection complaint with an affidavit signed by an attorney but based only on information supplied by a client did not violate the Fair Debt Collection Practices Act. Swearing to the truth of the affidavit without personal knowledge of the facts was neither a misrepresentation nor an unfair collection practice, according to the U.S. Court of Appeals for the Eighth Circuit (Janson v. Kathryn B. Davis, LLC).
The underlying suit claimed about $5,000 in unpaid rent and other charges. One of the attorneys at the landlord’s law firm verified the complaint by an affidavit, which Missouri state law requires. The attorney was required to testify at the trial, and he conceded that he had no personal knowledge about the facts included in the affidavit and that filing affidavits based on client information was the firm’s routine practice.
At the conclusion of the trial, the court awarded the landlord a total of $7,000 in damages and attorney fees.
FDCPA suit. Eleven months later, the tenant filed an attempted class action against the law firm in federal court, claiming FDCPA violations based on the affidavit. The district court judge dismissed the case after finding that the affidavit’s claim that the tenant owed unpaid rent was not false, misleading, or unfair.
Jurisdiction. On appeal, the law firm first attacked the appellate court’s jurisdiction, claiming that the Rooker-Feldman doctrine prevented federal courts from considering the consumer’s suit. The court rejected the challenge.
The Rooker-Feldman doctrine essentially prevents a person who loses a suit in state court from using a federal court as a court of review. It did not apply here, the court said. The tenant claimed that the law firm violated the FDCPA by having an attorney swear to an affidavit without knowing whether the contents were true; however, he did not claim that the contents were, in fact, false. As a result, the tenant's FDCPA suit did not challenge the state court judgment that he owed rent, the appellate court reasoned.
No violation. The FDCPA bans debt collectors from making “a false, deceptive or misleading representation” in connection with collecting a debt and from using an “unfair or unconscionable means to collect or attempt to collect any debt.” The tenant claimed that both provisions had been violated by the affidavit. The court disagreed.
First, the tenant did not claim that the attorney swore to statements known to be false or that he did not owe rent, the court pointed out. Even if the rent claims were false, the tenant had not plausibly claimed that anybody had been misled, so there could have been no misrepresentation.
Second, the judgment for unpaid rent was rendered after a trial at which evidence was submitted and considered. In such a case, swearing to an affidavit without personal knowledge would not be unfair or unconscionable, the appellate court decided.
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