On June 30, 2015, in Miljkovic v. Shafritz and Dinkin, P.A., the US Court of Appeals for the Eleventh Circuit held in a case of first impression that representations made by an attorney in court filings during the course of debt-collection litigation are actionable under the Fair Debt Collection Practices Act (FDCPA) (No. 14-13715, (11th Cir. June 30, 2015)).

The defendants, debt-collection attorneys for a non-party credit union, obtained a continuing writ of garnishment from a Florida state court against the plaintiff’s wages to recover the unpaid balance of a debt. The plaintiff filed a claim of exemption from garnishment, claiming in a sworn affidavit that because he was the primary source of income for his household he was exempt from garnishment under state law. The defendants filed a sworn reply disputing that the plaintiff was a “head of household” under Florida law. After some discovery, the defendant filed a motion to dissolve the writ of garnishment, which was granted.

The plaintiff then sued in the US District Court for the Middle District of Florida, claiming that, by filing the sworn reply, the defendant engaged in deceptive, harassing behavior that violated the FDCPA. The defendants moved to dismiss under FRCP 12(b)(6), arguing that the sworn reply was a mere procedural filing directed to the state court and plaintiff’s counsel, and was not the type of conduct that the FDCPA was meant to regulate. The district court agreed that the sworn reply was a formulaic procedural filing and that the FDCPA was inapplicable. It also found that communications directed to someone other than the consumer, such as the consumer’s attorney, are not actionable under the FDCPA. The plaintiff appealed.

The Eleventh Circuit disagreed with the district court’s finding that the FDCPA did not apply to the defendant’s conduct before the state court. It held that the plain language of the FDCPA mandates that its provisions apply to lawyers and law firms who engage in debt-collecting litigation, and prohibits abusive conduct even when the debt-collecting activity is directed at someone other than the consumer. This prohibition extends to all litigating activities of debt-collecting attorneys except for pleadings, which the law specifically exempts. The purpose of the statute is to protect consumers and others from abusive debt-collecting practices, regardless of whether the activity at issue is merely procedural. However, the court affirmed the dismissal of the plaintiff’s complaint because it did not find the defendant’s sworn reply to be abusive, deceptive or unfair, and therefore it did not violate the FDCPA.