Pennsylvania Record

Wednesday, October 16, 2019

Law firm faking intent to take depositions will face Fair Debt Collection Practices Act lawsuit

Federal Court

By Marian Johns | Sep 30, 2019


PHILADELPHIA – A law firm representing various creditors and utilizing "post-judgment depositions" as part of its debt recovery efforts has been denied its motion to dismiss a class action suit brought against the firm alleging violation of the Fair Debt Collection Practices Act.

According to the Sept. 10 U.S. District Court for the Eastern District of Pennsylvania filing, the court reviewed Hayt, Hayt & Landau LLC's (HHL) motion to dismiss a class action suit filed by Daniel Barenbaum. The court also reviewed HHL's and Barenbaum's cross motions for summary judgment and Barenbaum's motion for class certification.

"This case turns on whether HHL’s decision to issue thousands of deposition notices to judgment debtors without ever intending to take a deposition as it is traditionally understood amounts to a violation of the Fair Debt Collections Practices Act ('FDCPA')," Judge Berle Schiller said in the District Court's decision. 

The case stems from HHL serving Barenbaum with a "Notice of Deposition in Aid of Execution" relating to his $1,011.39 credit card debt on behalf of Midland Funding. According to the district court filing, HHL had scheduled 80 other depositions on the same day as Barenbaum's, all within a 2 1/2-hour time frame. 

HHL had already obtained a judgment against Barenbaum; the deposition was to discuss the disposition of the settlement from that judgment. The notice of deposition, the court filing said, also allowed Barenbaum to skip the deposition by paying the settlement. 

HHL scheduled several such post-judgment depositions, the court filing said, because it expected the large majority of people scheduled would not show up. In the time frame of Barenbaum's, three people did.

Barenbaum filed his lawsuit against the debt collector, claiming three violations of the fair debt collections act. He said the post-judgment depositions constituted harassment and abuse; that it used false, deceptive or misleading representation in its attempt to collect his debt; and that it was an unfair or unconscionable means to collect the debt.

The court sided with HHL in the first and third accusations, throwing them out, but said the notice of post-judgment deposition was false, deceptive and misleading, summarily granting judgment for Barenbaum on that one. It also granted Barenbaum's petition for class certification.

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