Nedzad Miljkovic v. Shafritz and Dinkin, P.A.
2015 U.S. App. LEXIS 11252
| 11th Cir. | 2015Background
- Miljkovic’s wage garnishment was issued in Florida state court to collect a debt for Publix; Appellant claimed exemption as head of family.
- Appellees filed a sworn reply opposing exemption; writ later dissolved after discovery and proceedings.
- Appellant sued in federal court alleging FDCPA violations by the sworn reply and related conduct.
- District court dismissed for failure to state a claim, ruling FDCPA did not apply to court filings or to communications to the consumer’s attorney.
- On appeal, the Eleventh Circuit held FDCPA applies to debt-collection litigation by attorneys and to communications directed at a consumer’s attorney, but Appellant still failed to state a claim.
- The court affirmed dismissal for failure to state a claim under the FDCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FDCPA applies to debt-collection lawyers in court filings | Miljkovic argues the sworn reply violates the FDCPA | Dinkin argues the FDCPA excludes procedural filings | FDCPA applies to litigating activities by debt-collection attorneys |
| Whether the sworn reply violated §1692d | Miljkovic asserts harassment via the sworn reply | Dinkin contends filing a court reply isn’t harassing | Sworn reply not harassing under §1692d |
| Whether the sworn reply violated §1692e/e(10) or §1692f | Miljkovic alleges deceptive, unfair means | Dinkin asserts no deceptive or unfair act beyond litigation | Plaintiff failed to state a §1692e/e(10) or §1692f claim |
Key Cases Cited
- Heintz v. Jenkins, 514 U.S. 291 (1995) (FDCPA applies to lawyers in litigation)
- Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007) (Congress exempted formal pleadings from §1692e(11) but did not exclude litigating activities generally)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010) (attorney duty to comply with the law; FDCPA applicability to lawyers)
- Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769 (7th Cir. 2007) (expands FDCPA coverage to communications with non-consumers like attorneys)