Dismissal of Claims Related to Collection of Debt under the FDCPA
Stratton v. Portfolio Recovery Associates, LLC, 2013 U.S. Dist. LEXIS 167636 (W.D. Ky. November 26, 2013)
On November 26, 2013, the Federal District Court for the Western District of Kentucky dismissed a consumer’s claims for ostensible violations of the Fair Debt Collection Practices arising out of a request for statutory prejudgment interest in a state court collection suit. In Stratton v. Portfolio Recovery Associates, LLC, 2013 U.S. Dist. LEXIS 167636 (W.D. Ky. November 26, 2013), Ms. Stratton alleged that Portfolio Recovery Associates (“PRA”) allegedly violated the Fair Debt Collection Practices Act (the "FDCPA") by seeking in a separate state court collection suit statutory prejudgment interest under KRS § 360.010 from the date the original creditor charged off the past due credit card debt. Ms. Stratton alleged that PRA violated the FDCPA because the original creditor waived its right to collect any interest when it charged off the account.
Upon PRA’s Motion to Dismiss filed by FDCPA defense counsel Joseph Tucker and Elizabeth Shaffer of Dinsmore, the Court disagreed with Ms. Stratton’s assertions. The federal Court clearly held that PRA’s request in the state court collection suit for 8 percent statutory prejudgment interest did not violate any provisions of the FDCPA. The Court held that even if the original creditor waived its right to collect contract interest when it charged off Ms. Stratton’s credit card debt, PRA still had the right to request that the state court award it 8 percent statutory prejudgment interest from the date of charge off. The Court relied on well established Kentucky law holding that , "‘[t]he legal rate of interest is eight percent (8 percent) per annum,’ which runs as a matter of right on a liquidated demand” and the law of assignment establishing that PRA stepped into the shoes of the original creditor upon acquisition of Ms. Stratton’s debt.
While concluding that PRA's request for statutory prejudgment interest from the date that Ms.Stratton's account was charged-off was not improper under Kentucky law, the Federal Court went even further and held that "even assuming the request [for statutory prejudgment interest] violated Kentucky law," such a request would not amount to an FDCPA violation. Applying the "least sophisticated consumer standard," the Court concluded that "the mere request for 8 percent statutory interest under Kentucky law does not constitute a violation of [§ 1692e(2)(A) of] the FDCPA ... As PRA points out, ... its request to the state court [was aspirational and] did not amount to a false representation ...”
The Court further held that the request for prejudgment interest in the state court collection case did not violate 1692e(5) which prohibits a “threat to take any action that cannot legally be taken." The Court held simply that the act of filing the state court complaint was not a "threat" within the meaning of § 1692e(5).
Finally, the Court held that PRA's mere request in its valid state court debt collection action was not an "unfair or unconscionable" act under § 1692f for the FDCPA because the "state court collection action was a lawful vehicle for PRA to recover the debt Ms. Stratton owes."
On November 26, 2013, the Federal District Court for the Western District of Kentucky dismissed a consumer’s claims for ostensible violations of the Fair Debt Collection Practices arising out of a request for statutory prejudgment interest in a state court collection suit. In Stratton v. Portfolio Recovery Associates, LLC, 2013 U.S. Dist. LEXIS 167636 (W.D. Ky. November 26, 2013), Ms. Stratton alleged that Portfolio Recovery Associates (“PRA”) allegedly violated the Fair Debt Collection Practices Act (the "FDCPA") by seeking in a separate state court collection suit statutory prejudgment interest under KRS § 360.010 from the date the original creditor charged off the past due credit card debt. Ms. Stratton alleged that PRA violated the FDCPA because the original creditor waived its right to collect any interest when it charged off the account.
Upon PRA’s Motion to Dismiss filed by FDCPA defense counsel Joseph Tucker and Elizabeth Shaffer of Dinsmore, the Court disagreed with Ms. Stratton’s assertions. The federal Court clearly held that PRA’s request in the state court collection suit for 8 percent statutory prejudgment interest did not violate any provisions of the FDCPA. The Court held that even if the original creditor waived its right to collect contract interest when it charged off Ms. Stratton’s credit card debt, PRA still had the right to request that the state court award it 8 percent statutory prejudgment interest from the date of charge off. The Court relied on well established Kentucky law holding that , "‘[t]he legal rate of interest is eight percent (8 percent) per annum,’ which runs as a matter of right on a liquidated demand” and the law of assignment establishing that PRA stepped into the shoes of the original creditor upon acquisition of Ms. Stratton’s debt.
While concluding that PRA's request for statutory prejudgment interest from the date that Ms.Stratton's account was charged-off was not improper under Kentucky law, the Federal Court went even further and held that "even assuming the request [for statutory prejudgment interest] violated Kentucky law," such a request would not amount to an FDCPA violation. Applying the "least sophisticated consumer standard," the Court concluded that "the mere request for 8 percent statutory interest under Kentucky law does not constitute a violation of [§ 1692e(2)(A) of] the FDCPA ... As PRA points out, ... its request to the state court [was aspirational and] did not amount to a false representation ...”
The Court further held that the request for prejudgment interest in the state court collection case did not violate 1692e(5) which prohibits a “threat to take any action that cannot legally be taken." The Court held simply that the act of filing the state court complaint was not a "threat" within the meaning of § 1692e(5).
Finally, the Court held that PRA's mere request in its valid state court debt collection action was not an "unfair or unconscionable" act under § 1692f for the FDCPA because the "state court collection action was a lawful vehicle for PRA to recover the debt Ms. Stratton owes."
