The U.S. Court of Appeals for the Eighth Circuit recently ruled that a plaintiff’s allegation that an affiant had falsely attested to having personal knowledge of the facts alleged in a debt collection complaint was insufficient to support the plaintiff’s Fair Debt Collection Practices Act (FDCPA) claims.
In Janson v. Katharyn B. Davis, LLC, a debt collection law firm hired by the plaintiff’s landlord had filed a complaint in Missouri state court for unpaid rent and possession of property. As required by state law, the complaint was verified by an affidavit in which an attorney from the law firm attested to various facts alleged in the complaint, such as the amount owed by the plaintiff for past due rent and other charges and the plaintiff’s failure to pay the rent upon demand. At trial, the attorney testified that his only basis for swearing to the truth of the affidavit was information provided by the landlord’s agent. The state court entered an order in favor of the landlord for past due rent and attorney’s fees
The plaintiff subsequently filed a putative class action against the law firm in federal district court for alleged FDCPA violations. According to the plaintiff, because the affiant swore to the truth of the affidavit without having personal knowledge of the facts stated therein, the filing of the affidavit violated the FDCPA prohibitions against using a “false, deceptive, misleading representation” or “unfair or unconscionable means” to collect a debt. The district court granted the law firm’s motion to dismiss based on the plaintiff’s failure to allege that the substance of the affidavit (e.g. that the plaintiff owed past due rent) was false or misleading.
In affirming the dismissal, the Eighth Circuit observed that the plaintiff had not alleged that the attorney swore to facts knowing they were false or that he did not actually rent the property or owe rent. According to the Court, even if it assumed the attorney’s attestation of personal knowledge was literally false, such falsehood alone would not provide the basis for an FDCPA claim without a plausible allegation that the plaintiff or anyone else was misled by that falsehood. As support, the Court cited to the concurring opinion in O’Rourke v. Palisades Acquisition XVI, LLC, a 2011 Seventh Circuit decision dealing with the application of the FDCPA to court filings. According to the Eighth Circuit, that opinion explained that “[i]f a statement would not mislead the unsophisticated consumer, it does not violate the FDCPA—even if it is false in some technical sense.”
The Eighth Circuit also observed that absent an allegation that the plaintiff actually did not owe rent, he had not “plausibly alleged that the defendant’s practice misled the state court in any meaningful way.” Accordingly, it agreed with the district court’s determination that the defendant had not used “unfair or unconscionable means” to collect a debt. Observing that other circuit courts have applied a similar analysis, the Court cited to a 2012 Second Circuit decision that rejected FDCPA claims based on “non-misleading technical falsehoods” in court filings.
