Source: Credit and Collection News
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Mar. 10, 2010 | West Virginia’s Legal Journal
News > Federal Court
Man sues Ky. law firm over debt collection letter
3/9/2010 7:54 PM By Kelly Holleran -Monongalia Bureau
MORGANTOWN – A man has filed a putative class action lawsuit against the Kentucky-based law firm that he says illegally sent him a debt collection letter.
Nicholas Davis claims he received a letter from defendant Mapother and Mapother in June 2008 telling him he owed it $861.96. According to Davis’ complaint filed Jan. 11 in Lewis Circuit Court, the letter contained Steven B. Mulrooney’s stamped signature.
In February 2009, Mapother mailed a second letter into Lewis County threatening to proceed with further legal action if it was not paid money, the suit states.
Making Davis angrier, the letters were sent to an incorrect address in Weston and not to his Morgantown home.
“Even a cursory examination of credit report information would have provided Mapother or any other collection agency with the correct address,” the suit states.
However, Mapother claims it and co-defendant Midland Funding sent collection letters to the address Davis supplied to Midland.
“Nowhere in the counts does Plaintiff state either how attempting to contact the debtor at the last address he provided is a violation of any law, nor how there is any duty under any law imposed upon Mapother or Midland to engage in excessive efforts to find new addresses, other than the one provided by the debtor previously, searching for where a debtor might be found,” the suit states.
Davis claims he never should have received letters because West Virginia law requires that any collector or collection agency hold an approved collection agency license and a collection surety bond, neither of which Mapother possessed.
Mapother disputes the claim, saying it is not a collection agency, but instead an attorney-at-law handling claims in its own name.
Davis also argues attorneys must be familiar with a case before signing their name to a debt collection letter, the complaint says.
“If the attorney has not reviewed the consumer file, he or she could not sue as no facts would be known to the attorney and threats of legal action would be deceptive,” his suit states.
But Mapother claims a Second Circuit Court ruling allows attorneys the opportunity to send debt collection letters as long as they include a disclaimer clearly stating that the attorney is not acting as such.
“The Second Circuit made it clear that the disclaimer language complained about in the Complaint, rather than making the letter confusing or deceptive, actually accomplishes the opposite; clearly and unambiguously informing the debtor of the exact role the attorney currently holds,” Mapother’s motion to dismiss states. “For example, a letter from an attorney could easily be misconstrued by the ‘least sophisticated consumer’ as an actual legal process. The disclaimer language makes it clear this is not the case.”
Davis is seeking an unspecified judgment, plus pre- and post-judgment interest, costs, attorney’s fees and statutory damages.
But Mapother and Midland say he should receive no reward.
“When critically examined, the entire Complaint is grossly deficient,” the request for dismissal states. “It is completely lacking in legal and factual support. As the situation stands, it alleges counts that are directly in opposition to the statutory and case law applicable in this case. In such a situation, there is no choice but to dismiss the Complaint for failure to state a claim.”
Mapother and Midland, Kentucky and California corporations respectively, removed the case to U.S. District Court for the Northern District of West Virginia, alleging Davis and the defendants are residents of different states and that Davis is seeking more than $75,000.
Franklin D. Cornette of Cornette Law in Weston will be representing Davis.
E. Taylor George of Mapother and Mapother in Huntington will be representing Mapother and Midland.
U.S. District Court case number: 2:10-cv-12