Roe v. Roosen, Varchetti & Olivier, PLLC
2:18-cv-13536
E.D. Mich.Jun 19, 2019Background
- Plaintiff Angela Roe (an employee paid by commission) received a garnishee disclosure after defendants Roosen, Varchetti & Oliver, PLLC and Credit Acceptance served a writ of garnishment on her employer for a judgment against a different Angela Roe who shared the same name but had a different SSN.
- The writ included the correct SSN of the actual debtor; Plaintiff’s employer later amended its garnishee disclosure when it learned Plaintiff was not the debtor; Plaintiff’s wages were never garnished.
- Plaintiff alleges emotional distress, embarrassment, and lost real-estate sales opportunities after receiving the garnishee disclosure; she sued under the FDCPA and Michigan law, seeking to amend her complaint to add several FDCPA claims and state-law claims.
- Defendants moved for dismissal/summary judgment arguing lack of Article III standing and that the proposed FDCPA claims fail as a matter of law (mistaken identity and post-judgment communications were defensible).
- The court found Plaintiff has Article III standing and evaluated whether amendment would be futile under Rule 12(b)(6).
- Court granted leave to amend for claims under 15 U.S.C. §§1692e, 1692f, and 1692c(b) and state-law claims, but denied amendment as to §1692d; defendants’ pending summary-judgment motion was denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Roe suffered concrete injuries (emotional distress, lost income, embarrassment) traceable to the garnishment served on her employer | No concrete harm; FDCPA not meant for mistaken-identity errors; employer’s receipt breaks causation | Plaintiff has standing; alleged harms are concrete and traceable |
| §§1692e / 1692f (false/deceptive or unfair means) | Serving writ that implicated Roe as judgment debtor could mislead the least sophisticated consumer and attempt to collect a debt not owed | Plaintiff should have recognized the SSN mismatch; no likelihood of deception as a matter of law | Amendment granted; claims plausible under the least-sophisticated-consumer standard (facts may affect summary judgment) |
| §1692c(b) (communications with third parties) | Roe was an "allegedly obligated" consumer when garnishee notice was served; contacting employer can cause harassment/embarrassment and may be unnecessary | Plaintiff is not a consumer under the FDCPA; writ service was a reasonable post-judgment action against an employer to effectuate garnishment | Amendment granted; triable issue whether contacting employer of the wrong person was ‘‘reasonably necessary’’ |
| §1692d (harassment, oppression, abuse) | Serving the garnishment caused distress and embarrassment | Single service on employer, following court rules, is not the kind of harassing conduct §1692d forbids | Amendment denied as futile; §1692d claim dismissed (single writ service insufficient) |
Key Cases Cited
- Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747 (6th Cir. 2018) (standing analysis for FDCPA claims where risk of harm can confer concreteness)
- Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017) (procedural FDCPA violation insufficient for standing on these facts)
- Currier v. First Resolution Inv. Corp., 762 F.3d 529 (6th Cir. 2014) (FDCPA is broadly construed)
- Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323 (6th Cir. 2012) (least-sophisticated-consumer standard applied to deceptive practices)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III injury-in-fact requires concreteness; intangible harms can be concrete)
- Demarais v. Gurstel Chargo, P.A., 869 F.3d 685 (8th Cir. 2017) (service of legal process on third parties can cause concrete injury to the consumer)