Robert Simon v. FIA Card Services NA
639 F. App'x 885
| 3rd Cir. | 2016Background
- Robert and Stacey Simon filed Chapter 7; Weinstein & Riley (counsel for creditor FIA) sent two Rule 2004 "Notice of Examination" letters and attached notices to the Simons' bankruptcy attorney (not the Simons personally).
- The notices purported to show they were mailed to both the attorney and the Simons, and omitted certain text required by Federal Rule of Civil Procedure 45 (as incorporated by Fed. R. Bankr. P. 9016).
- The Bankruptcy Court granted the Simons' motion to quash the subpoenas; the Simons then sued under the FDCPA (15 U.S.C. § 1692e), alleging the communications were false, deceptive, and misleading.
- On remand from this Court's earlier opinion (Simon I), the District Court granted summary judgment for FIA and Weinstein, applying a "competent attorney" standard because communications were sent to counsel, and also concluded the alleged misstatements/omissions were not material.
- The Third Circuit affirmed, holding that the communications were not false, deceptive, or misleading under the "least sophisticated debtor" standard (the Court resolved the merits under the more plaintiff-favorable standard).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable interpretive standard for communications sent to counsel | Simons: apply the FDCPA "least sophisticated debtor" standard | Defendants: communications to counsel should be judged by a "competent attorney" standard | Court: need not decide; applied "least sophisticated debtor" and ruled for defendants on the merits |
| Whether stating subpoenas were mailed to debtors when sent only to counsel was actionable | Simons: false statement that could mislead debtors about obligations | Defendants: technically false but immaterial to debtors' decisions | Held: technically false but not material; not actionable under §1692e |
| Whether omission of Rule 45(d)-(e) text rendered notices misleading | Simons: omission made subpoenas deceptively suggest valid/enforceable process | Defendants: omission did not contradict or negate procedural protections; not misleading | Held: omission did not make communications false or misleading to the least sophisticated debtor |
| Whether summary judgment was premature because discovery might show subpoenas were a sham | Simons: needed discovery to show Weinstein never intended to conduct examinations | Defendants: plaintiffs never timely sought discovery or disputed facts properly | Held: argument waived for failure to pursue/request discovery with specificity; summary judgment affirmed |
Key Cases Cited
- Kaymark v. Bank of Am., 783 F.3d 168 (3d Cir.) (FDCPA remedial purpose and general standard)
- Jensen v. Pressler & Pressler, 791 F.3d 413 (3d Cir.) (least sophisticated debtor standard requires materiality)
- Simon v. FIA Card Servs., N.A., 732 F.3d 259 (3d Cir.) (prior remand opinion addressing preclusion and scope of FDCPA claims)
- Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364 (3d Cir.) (communications to a debtor's attorney are indirect communications to the debtor)