Eighth Circuit Rejects FDCPA Claim Based Upon Attorney Affidavit

The Eighth Circuit recently rejected an FDCPA claim alleging that a law firm violated the Act by swearing to an affidavit without personal knowledge of the facts.  The case, Janson v. Davis, arises from the law firm’s collection suit for unpaid rents.  Janson v. Davis, 2015 U.S. App. LEXIS 19894 (8^th Cir. Nov. 17, 2015).  As was the law firm’s customary practice, the attorney filing the suit executed and attached to the complaint an affidavit setting forth the past due balance, as well as the monthly rental rate.  In the subsequent FDCPA suit against the law firm, the consumer alleged that the affidavit was not based upon the attorney’s personal knowledge of the facts and that by swearing to the truth of the affidavit without having personal knowledge of the facts, the law firm violated Sections 1692e and 1692f of the FDCPA. 

On appeal from the district court’s dismissal of the suit, the appellate court pointed out that the suit did not allege that the contents of the affidavit were false.  Moreover, the court honed in on the fact that the complaint did not allege that the consumer or the court were misled by the affidavit in any meaningful way.  The court therefore concluded that there was no violation of the FDCPA and that even a technical falsehood without more would not give rise to a violation of the Act.  “[C]ourts [may only] link “false to misleading,” meaning “[i]f a statement would not mislead the unsophisticated consumer, it does not violate the FDCPA – even if it is false in some technical sense.” Janson at *6, quoting O’Rourke c. Palisades Acquisition XVI, LLC, 635 F. 3d 938, 945 (7^th Cir. 2011) (Tinder, J., concurring). 

The court’s opinion brings the Eighth Circuit into alignment with the Second and Seven Circuits and emphasizes that, at least in those circuits, the element of whether the court or unsophisticated consumer were misled is key.