Opinion
Civil No. 04-6082-TC.
September 1, 2004
FINDINGS AND RECOMMENDATION
Plaintiff, pro se, filed a "Complaint to Recover Damages for Violation of 15 U.S.C. § 1692 et seq." Defendants now move to dismiss pursuant to Fed.R.Civ.P 12 (B) (6) for failure to state a claim (#4).
The relevant facts are as follows: Plaintiff was sued in the Lane County Circuit Court by American Express Centurion Bank for collection of a debt. Defendants represented American Express. The complaint was signed by defendant Richard J. Parker. Since the claim was for less than $25,000, it was referred to the mandatory arbitration program. ORS 36.400 — 36.425.
An arbitration hearing was held on October 1, 2003. Plaintiff did not appear and an award was entered in favor of American Express on its claim of $19,016.10, plus costs and attorney's fees of $4,845. See, Exhibit B to plaintiff's Complaint (#1).
Plaintiff alleges that defendants' "verification" of the complaint was a "deceptive and unfair practice" that "amounts to a false representation of counsel's knowledge." Complaint (#1), p. 2. Plaintiff contends that defendants are liable for the amount of the award and seeks a judgment against defendants for the amount of the debt that was reduced to judgment in the Lane County Circuit Court.
Plaintiff does not allege that defendants made a "false, deceptive or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692(e) or that defendants' signing of the complaint amounted to a false certification under ORCP 17. Plaintiff's claim is predicated on the theory that an attorney violates 15 U.S.C. § 1692(e) whenever the attorney signs a complaint that seeks to recover a debt, without personal knowledge of the amount of the debt in dispute.
Plaintiff's reliance on Young v. Meyer Njus, 1997 WL 452865 (N.D. Ill.) is misplaced. The court's holding in Young that an attorney's review of a computer print-out of the debt could not provide a basis for the attorney's verification of facts based on personal knowledge was limited to the unique facts of that case and the Illinois Code of Civil Procedure's verification rules for pleadings. It is not controlling in the case before this court.See also, Bradley v. Fairbanks Capital Corporation, 2003 WL 21011801 (N.D. Ill.)
In Oregon the attorney or party signing a pleading does so "on the person's reasonable knowledge, information and belief, formed after making an inquiry as is reasonable under the circumstances and that the factual allegations "are supported by evidence." ORCP 17 C (1) and (4). Plaintiff's complaint does not allege that defendants violated this or any other certification required by ORCP 17 C.
In Heintz v. Jenkins, 514 U.S. 291, 294 (1995), the Supreme Court upheld the Seventh Circuit's holding that the Fair Debt Collection Practices Act [FDCPA] does not hold attorneys collecting debts to a different standard than other debt collectors or require them to investigate the validity of the claims they prosecute on behalf of their clients. "The act reads that debt collectors are not liable for attempting to collect validly certified amounts owed their client. It does not say that the collector's status as an attorney should add a requirement of independent legal analysis for each aspect of the creditor's claim . . . To require an attorney debt collector to conduct an independent investigation into the legal intricacies of the client's contract with the consumer would create a double standard for the bona fide error doctrine based upon the identity of the collector. The language of the FDCPA does not provide for such a standard . . ." Jenkins v. Heintz, 124 F. 3rd 824, 833 (7th Cir. 1997).
Plaintiff's complaint fails to state a claim. Defendants' Motion to Dismiss (#4) should be allowed. Plaintiff's Motion to Strike Defendant's (sic) Motion to Dismiss; and Motion for Summary Judgment (#10) should be denied. Defendants' Motion for Enlargement of Time (#16) should be denied as moot. This case should be dismissed.