In Young v. Unifund CCR Partners, the consumer plaintiffs defeated Unifund's motion to dismiss by convincing a court that Unifund's arguable inability to prove custody of a debt as required under state law violated the Fair Debt Collection Practices Act ("FDCPA") as follows:
- Threatening to take an action that cannot legally be taken under FDCPA § 1692e(5);
- Using a deceptive means to collect a debt under FDCPA § 1692e(1); and
- Using unfair or unconscionable means to collect a debt under FDCPA § 1692f.
If the allegations are true, the court analogized the claim as being similar to filing a time-barred claim. It would mislead the "unsophisticated consumer" into believing that the debt is legally enforceable.
This Young case seems to be at odds with Richardson v. Midland since the claim speaks to the deficiency of evidence rather than some kind of affirmative misrepresentation. But like all areas of law, the theory in the complaint can make all the difference. Sometimes, making the right arguments and citing better legal authority can turn a loser into a winner.
Complicating the picture here was the fact that Unifund CCR Partners was suing based on the right to collect only. It did not possess "equitable title" to the debt, only legal title to the debt. This is a topic for another blog. But in Young, the plaintiffs' FDCPA theory with regard to that component of the case did not work.
Contact us if any debt collector is bothering you.