Paula Jensen v. Pressler & Pressler , 791 F.3d 413 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-2808
_____________
PAULA JENSEN,
Appellant
v.
PRESSLER & PRESSLER;
MIDLAND FUNDING LLC; DOES 1-100
_____________
APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 2-13-cv-01712)
District Judge: Honorable Susan D. Wigenton
_____________
Argued
March 18, 2015
____________
Before: MCKEE, Chief Judge, RENDELL and FUENTES,
Circuit Judges
(Opinion Filed: June 30, 2015)
______________
Sergei Lemberg, Esq. [ARGUED]
LEMBERG LAW, LLC
1100 Summer Street, 3rd Floor
Stamford, Connecticut 06905
Attorney for Appellant
Mitchell L. Williamson, Esq. [ARGUED]
PRESSLER & PRESSLER, LLP
7 Entin Road
Parsippany, NJ 07054
Michael J. Peters, Esq.
PRESSLER & PRESSLER, LLP
7 Entin Road
Parsippany, NJ 07054
Attorneys for Appellee Pressler & Pressler
Lauren M. Burnette, Esq. [ARGUED]
Marshall, Dennehey, Warner, Coleman & Goggin
100 Corporate Center Drive, Suite 201
Camp Hill, PA 17011
Attorney for Appellee Midland Funding LLC
______________
OPINION OF THE COURT
______________
McKEE, Chief Judge.
We are asked to decide whether a false statement in a
communication from a debt collector to a debtor must be
material in order to be actionable under a provision of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692e. We conclude that materiality is required, as it is
subsumed within the “least sophisticated debtor” standard that
has traditionally governed FDCPA claims. Because we do
not find the misstatement at issue in this case material, we
will affirm the District Court’s grant of summary judgment to
Pressler & Pressler and Midland Funding, LLC.
I.
The facts of this case are largely undisputed.
Appellant Paula Jensen defaulted on a Bank of America credit
card, and her debt was eventually sold to Appellee Midland
Funding, LLC (“Midland”). Midland retained the law firm of
Appellee Pressler & Pressler (“Pressler”) to help collect
Jensen’s debt. Midland obtained a default judgment against
2
Jensen in the Superior Court of New Jersey in the amount of
$5,965.82. Pressler then attempted to collect on that
judgment by serving an information subpoena and written
questions on Jensen.
The information subpoena and accompanying
questions sought personal and financial information from
Jensen in aid of collection. It advised that “failure to comply
. . . may result in . . . arrest and incarceration.” The
information subpoena was issued pursuant to Rule 1:9-1 of
the Rules Governing the Courts of the State of New Jersey
(“New Jersey Rules”), which allows New Jersey attorneys to
issue subpoenas in the name of the clerk of court.
Information subpoenas issued under this rule properly bear
the signature of the clerk, even though the clerk herself did
not sign the subpoena and likely does not even have
knowledge of it. The information subpoena here was based
on the sample “form” in the Appendix to the New Jersey
Rules. That form provides space for two electronic or typed
signatures: one for the issuing attorney, and one for the clerk.
Because Pressler sought to enforce a judgment from the
Superior Court of New Jersey, the Superior Court clerk’s
name should have appeared on the clerk’s signature line.
Instead, Pressler listed “Terrence D. Lee” on the
clerk’s signature line. Lee had never worked as a clerk of the
Superior Court, and although he had been the County Clerk of
Warren County, he left that position six years earlier.
Ironically, Jensen knew Lee, and she also knew that he was
not a clerk of the Superior Court. Roughly one month later,
Jensen sent a letter to Pressler explaining that she was aware
that Mr. Lee was not the Superior Court clerk and calling the
subpoena “fraudulent.” However, she also answered the
questions that accompanied the information subpoena.
Thereafter, Jensen moved to vacate the state court
judgment against her, but her motion was denied. She then
filed a putative class action against Pressler and Midland
(together, “Appellees” or “Collectors”) in the U.S. District
Court for the District of New Jersey, alleging a violation of §
1692e of the FDCPA, which prohibits making false,
misleading, or deceptive statements in the collection of
consumer debts. The District Court granted summary
judgment in favor of the Collectors and denied Jensen’s cross
3
motion for summary judgment. It concluded that, because the
misuse of Lee’s name was not a material false statement,
there could be no liability under § 1692e. See Jensen v.
Pressler & Pressler, LLP, No. 13-CV-01712, 2014 WL
1745042, at *5 (D.N.J. Apr. 29, 2014). This appeal
followed.1
We have not yet had occasion to decide whether §
1692e contains a materiality requirement. For the reasons
that follow, we agree with the District Court’s conclusion that
misstatements must be material to be actionable under §
1692e. Accordingly, we will affirm.
II.
“This Court exercises plenary review over a district
court’s grant of summary judgment, applying the same
standard employed by the district court.” Trinity Indus., Inc.
v. Chi. Bridge & Iron Co., 735 F.3d 131, 134 (3d Cir. 2013).
Summary judgment should only be granted where, after the
close of discovery and viewing the evidence in the light most
favorable to the non-moving party, the movant establishes
that no genuine issue of material fact remains. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
factual dispute is material if it might affect the outcome of the
suit under governing law.” Lupyan v. Corinthian Colls. Inc.,
761 F.3d 314, 317 (3d Cir. 2014) (citing Doe v. Luzerne
Cnty., 660 F.3d 169, 175 (3d Cir. 2011)).
III.
“To prevail on an FDCPA claim, a plaintiff must prove
that (1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an
attempt to collect a ‘debt’ as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in
attempting to collect the debt.” Douglass v. Convergent
Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). Only the
fourth prong is disputed here. As noted, Jensen asserts that
the subpoena violated § 1692e, the provision of the law
1
The District Court had jurisdiction over this case pursuant to
28 U.S.C. § 1331. We have appellate jurisdiction under 28
U.S.C. § 1291.
4
dealing with communications from debt collectors to debtors.
She also claims that the subpoena violated two more specific
subsections, § 1692e(9) and § 1692e(10). Those provisions
provide:
A debt collector may not use any false,
deceptive, or misleading representation or
means in connection with the collection of any
debt. Without limiting the general application of
the foregoing, the following conduct is a
violation of this section:
***
(9) The use or distribution of any written
communication which simulates or is
falsely represented to be a document
authorized, issued, or approved by any
court, official, or agency of the United
States or any State, or which creates a
false impression as to its source,
authorization, or approval.
(10) The use of any false representation or
deceptive means to collect or attempt to
collect any debt or to obtain information
concerning a consumer.
15 U.S.C. § 1692e. Jensen argues that Pressler’s use of
Terrence Lee’s electronic signature was a “false . . .
representation” in violation of 15 U.S.C. § 1692e. Jensen is
obviously correct as a factual matter, insofar as using
Terrence Lee’s name is a “false representation” in the most
technical sense of the phrase. The subpoena represents Lee to
be the Clerk of the Superior Court of New Jersey, but he was
not the clerk and had never held that post.
However, Appellees argue that this technically false
representation is not actionable under the FDCPA because it
is not material. The Court of Appeals for the Seventh Circuit
first addressed this issue in Hahn v. Triumph Partnerships
LLC, 557 F.3d 755 (7th Cir. 2009). There, the court adopted
a “materiality” requirement for false, misleading, or deceptive
statements under the FDCPA. Id. at 757. A number of our
5
sister Courts of Appeals subsequently adopted such a
requirement. See Elyazidi v. SunTrust Bank, 780 F.3d 227,
234 (4th Cir. 2015); Donohue v. Quick Collect, Inc., 592 F.3d
1027, 1033–34 (9th Cir. 2010); Miller v. Javitch, Block &
Rathbone, 561 F.3d 588, 596 (6th Cir. 2009). No Circuit
Court that has addressed this issue has disagreed with Hahn
and held that an immaterial false statement made during the
collection of a consumer debt is actionable under the FDCPA.
This dispute presents our Court with its first opportunity to
decide if “false, deceptive, or misleading” statements must be
material to be actionable under 15 U.S.C. § 1692e.2
Jensen correctly argues that the word “material” does
not appear in the statute. However, that is not necessarily
outcome determinative. Congress’s intent guides our
interpretation of statutes. See Allen ex rel. Martin v. LaSalle
Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). Our
interpretive task begins and ends with the text of the statute
unless the text is ambiguous or does not reveal congressional
intent “with sufficient precision” to resolve our inquiry. Id.
However, “[w]here the statutory language does not express
Congress’s intent unequivocally, a court traditionally refers to
the legislative history and the atmosphere in which the statute
was enacted in an attempt to determine the congressional
purpose.” In re Lord Abbett Mut. Funds Fee Litig., 553 F.3d
248, 254 (3d Cir. 2009) (citation omitted). Jensen’s reliance
on the precise wording of the statute here ignores the fact that
materiality requirement is simply a corollary of the well-
established “least sophisticated debtor” standard, which
courts have routinely applied to alleged violations of § 1692e
2
The sub-parts of § 1692e comprise a non-exhaustive list of
debt collection practices that violate the prohibition on false
or misleading representation. See 15 U.S.C. § 1692e
(“Without limiting the general application of the foregoing
[general prohibition on false, deceptive or misleading
representations], the following conduct is a violation of this
section . . . .”). Most of the examples of prohibited behavior
involve a statement or affirmative representation by a debt
collector, but § 1692e(11) involves an omission: the failure to
disclose relevant information. When we refer to § 1692e’s
prohibition of some statements or representations, we refer to
all acts and omissions covered under the provision.
6
in order to advance the congressional intent of the FDCPA.
Indeed, the parties do not dispute this standard’s validity and
application to this case. Yet, that standard, like the disputed
materiality requirement, appears nowhere in the text of the
statute. As we will explain, we are satisfied that both the
least sophisticated debtor standard and the materiality
requirement supply a necessary analytical framework and are
consistent with the FDCPA’s purpose and legislative history.
Because we agree with the District Court that the Collectors
did not violate § 1692e, we will affirm.
A.
As the FDCPA is an explicitly remedial statute, passed
by Congress “to eliminate abusive debt collection practices
by debt collectors,” 15 U.S.C. § 1692(e), “we construe its
language broadly, so as to effect its purpose[,]” Brown v.
Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) (citation
omitted). Courts routinely employ a “least sophisticated
debtor” standard when deciding if debt collection violates the
FDCPA. See Rosenau v. Unifund Corp., 539 F.3d 218, 221
(3d Cir. 2008) (“We use the ‘least sophisticated debtor’
standard in order to effectuate ‘the basic purpose of the
FDCPA . . . .’” (quoting Brown, 464 F.3d at 454)). Although
the least sophisticated debtor standard is “lower than the
standard of a reasonable debtor,” it “preserv[es] a quotient of
reasonableness and presum[es] a basic level of understanding
and willingness to read with care.” Id. (quoting Wilson v.
Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000)). In
so doing, it “give[s] effect to the Act’s intent to ‘protect[] the
gullible as well as the shrewd.’” Campuzano-Burgos v.
Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir. 2008)
(second alteration in original) (quoting Brown, 464 F.3d at
453).
The standard is an objective one, meaning that the
specific plaintiff need not prove that she was actually
confused or misled, only that the objective least sophisticated
debtor would be. See Pollard v. Law Office of Mandy L.
Spaulding, 766 F.3d 98, 103 (1st Cir. 2014) (“[T]he FDCPA
does not require that a plaintiff actually be confused.”);
Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2d
Cir. 1993) (“We apply an objective test based on the
7
understanding of the ‘least sophisticated consumer’ in
determining whether a collection letter violates section
1692e.”). Thus, “the FDCPA enlists the efforts of
sophisticated consumers . . . as ‘private attorneys general’ to
aid their less sophisticated counterparts, who are unlikely
themselves to bring suit under the Act, but who are assumed
by the Act to benefit from the deterrent effect of civil actions
brought by others.” Jacobson v. Healthcare Fin. Servs., Inc.,
516 F.3d 85, 91 (2d Cir. 2008).
As noted earlier, the phrase “least sophisticated
debtor” does not appear in the text of the FDCPA.
Nevertheless, the standard is almost universally employed by
Courts of Appeals in interpreting that law.3 Indeed, the
standard was first used more than three decades ago in 1981,
a mere four years after the FDCPA was enacted. Bingham v.
Collection Bureau, Inc., 505 F. Supp. 864, 870-71 (D.N.D.
1981) (explaining that the standard historically used to
analyze Federal Trade Commission Act claims, that courts
“should look not to the most sophisticated readers but to the
least[,]” should also be used in the FDCPA context (quoting
3
The overwhelming majority of Courts of Appeals have
employed some form of the standard, though it is sometimes
referred to as the “least sophisticated consumer” or
“unsophisticated debtor” standard. See Pollard, 766 F.3d at
103; McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th
Cir. 2012); Wahl v. Midland Credit Mgmt., Inc., 556 F.3d
643, 645–46 (7th Cir. 2009); Strand v. Diversified Collection
Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004); Terran v.
Kaplan, 109 F.3d 1428, 1431–32 (9th Cir. 1997); United
States v. Nat’l Fin. Serv., Inc., 98 F.3d 131, 136 (4th Cir.
1996); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.
1993); Smith v. Transworld Sys., 953 F.2d 1025, 1028–30
(6th Cir. 1992); Jeter v. Credit Bureau, 760 F.2d 1168, 1175
(11th Cir. 1985). The Tenth Circuit appears to have never
explicitly embraced—but certainly never disclaimed—the
standard. See Dikeman v. Nat’l Educators, Inc., 81 F.3d 949,
954 (10th Cir. 1996) (noting that “the [FDCPA] is . . .
designed to protect such consumers as may not have the
sophistication to appreciate the significance of debt collection
communications”). The D.C. Circuit has apparently not had
occasion to decide the issue.
8
Exposition Press, Inc. v. FTC, 295 F.2d 869, 873 (2d Cir.
1961)). The first Court of Appeals to adopt this standard did
so a year later, in 1982. See Baker v. G. C. Servs. Corp., 677
F.2d 775, 778 (9th Cir. 1982).
The Court of Appeals for the Eleventh Circuit has
given a thorough and a compelling explanation of why the
reasonable person standard is not appropriate under the
FDCPA. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168
(11th Cir. 1985). As Jeter explains, prior to the passage of
the FDCPA, the least sophisticated debtor standard was used
to analyze claims that deceptive debt collection practices
violated the Federal Trade Commission Act (“FTCA”). Id. at
1173. At that time, regulations issued by the Federal Trade
Commission under the authority of the FTCA banned
deceptive practices. See id. However, in enacting the
FDCPA, Congress explicitly found that “[e]xisting laws and
procedures for redressing these injuries are inadequate to
protect consumers.” 15 U.S.C. § 1692(b). Thus, the Jeter
court reasoned, “[i]t would be anomalous for the Congress, in
light of its belief that existing state and federal law was
inadequate to protect consumers, to have intended that the
legal standard under the FDCPA be less protective of
consumers than under the existing ‘inadequate’ legislation.”
Jeter, 760 F.2d at 1173–74.
Based on its legislative history, the context of its
passage, and its statutory purpose, the Eleventh Circuit
concluded that Congress intended courts to view FDCPA
claims from the perspective of the least sophisticated debtor.
Id. at 1175. The court reasoned that “the FDCPA’s purpose
of protecting [consumers] . . . is best served by a definition of
‘deceive’ that looks to the tendency of language to mislead
the least sophisticated recipients of a debt collector’s
[communications].” Id. (second alteration in original)
(citation omitted)). As noted, the Courts of Appeals have
nearly universally embraced Jeter’s reasoning and employed
the least sophisticated debtor standard to help effectuate the
FDCPA’s purpose.
B.
9
We regularly apply the least sophisticated debtor
standard to claims under § 1692e. Specifically, we focus on
whether a debt collector’s statement in a communication to a
debtor would deceive or mislead the least sophisticated
debtor. See, e.g., McLaughlin v. Phelan Hallinan & Schmieg,
LLP, 756 F.3d 240, 246 (3d Cir. 2014) cert. denied, 135 S.
Ct. 487 (2014) (explaining that the debtor collector is
“responsible for [a communication’s] content and for what
the least sophisticated debtor would have understood from
it”); Rosenau, 539 F.3d at 223 (determining whether a letter
was deceptive by asking “whether under the least
sophisticated debtor standard, [the debt collector’s] letter to
[the debtor] ‘can be reasonably read to have two different
meanings, one of which is inaccurate’” (quoting Quadramed,
225 F.3d at 354)).
As quoted earlier, § 1692e prohibits the use of any
“false, deceptive, or misleading representation or means in
connection with the collection of any debt.” While it is
impossible to know whether a statement is misleading or
deceptive without reference to the person being misled or
deceived—here, the least sophisticated debtor—the same is
not true of falsity; a statement is either true or false. This
presented a challenge to courts trying to view false statements
through the eyes of the least sophisticated debtor. For
example, in Wahl Midland Credit Mgmt., Inc., 556 F.3d 643
(7th Cir. 2009), the court was asked to determine if Congress
intended false communications to be treated differently than
misleading or deceptive communications under the FDCPA.
That court’s explanation for uniformly analyzing the three
categories of statements laid the foundation for a materiality
requirement:
Where a plaintiff alleges that a collection
statement is false (rather than deceptive or
misleading), Wahl contends, the only
determination for the court is whether the
statement is in fact false. “It is unnecessary to
determine whether the unsophisticated
consumer would be deceived or misled or
confused by the alleged false statement.” That
could not be further from the truth.
10
In deciding whether collection letters violate the
FDCPA, we have consistently viewed them
through the eyes of the “unsophisticated
consumer.”
Id. at 645. The Wahl court stressed that the state of mind of
the debtor is always relevant, and that debt collection
communications must be assessed from the perspective of the
least sophisticated debtor regardless of whether a
communication is alleged to be false, misleading, or
deceptive. See id. at 645–46.
In Hahn, the Court of Appeals for the Seventh Circuit
simply expanded on Wahl’s reasoning. The court explained
that materiality “is the upshot of [the] conclusion in Wahl
that, ‘[i]f a statement would not mislead the unsophisticated
consumer, it does not violate the [Act]—even if it is false in
some technical sense.’” Hahn, 557 F.3d at 758 (second and
third alterations in original) (citation omitted) (quoting Wahl,
556 F.3d at 646). The Hahn court recognized that the
FDCPA was designed to give debtors reliable information so
that they can make informed decisions about how to address
debts, and that “by definition immaterial information neither
contributes to that objective (if the statement is correct) nor
undermines it (if the statement is incorrect).” Id. at 757–58.
Accordingly, a false statement is only actionable under the
FDCPA if it has the potential to affect the decision-making
process of the least sophisticated debtor; in other words, it
must be material when viewed through the least sophisticated
debtor’s eyes.
It is therefore clear that the materiality requirement is
simply another way of phrasing the legal standard we already
employ when analyzing claims under § 1692e, so that the
same analysis can be applied to communications containing
false statements. See Donohue, 592 F.3d at 1034 (“[T]he
materiality requirement functions as a corollary inquiry into
whether a statement is likely to mislead an unsophisticated
consumer.”). Because we view the materiality requirement as
a different way of expressing the least sophisticated debtor
standard, we are satisfied that adopting a materiality
requirement for claims brought under § 1692e is consistent
with Congress’s intent in this regard. Indeed, refusing to
11
adopt this materiality requirement would be inconsistent with
decades of our own jurisprudence employing the least
sophisticated debtor standard.
We realize, as we noted earlier, that the FDCPA is a
remedial statute designed to curb abusive collective practices,
and that it must therefore be read liberally. However, our
recognition that an element of materiality is subsumed in our
analytical framework does nothing to dilute the protection
Congress intended. A debtor simply cannot be confused,
deceived, or misled by an incorrect statement unless it is
material.
C.
We stress that this materiality standard does not turn
on what an ordinary individual might reasonably understand
from a debt collector’s communication. See United States v.
Gaudin, 515 U.S. 506, 509 (1995) (defining a material
statement as one that has “a natural tendency to influence, or
[is] capable of influencing, the decision of the
decisionmaking body to which it was addressed” (quoting
Kungys v. United States, 485 U.S. 759, 770 (1988)). Because
the materiality requirement is a corollary of the least
sophisticated debtor standard, the relevant “decisionmaking
body” here is the least sophisticated debtor. Thus, a
statement in a communication is material if it is capable of
influencing the decision of the least sophisticated debtor. See
Elyazidi, 780 F.3d at 234 (“To violate the statute, a
representation must be material, which is to say, it must be
‘important in the sense that [it] could objectively affect the
least sophisticated consumer’s decisionmaking.’” (alteration
in original) (citation omitted)).
As our jurisprudence in this area has shown, this is not
a particularly high bar. For example, we recently held that
debt collectors may not, consistent with § 1692e, represent
estimates of the amount that the debtor would ultimately owe
as the actual amount owed as of the date of the
communication. McLaughlin, 756 F.3d at 246; see also
Kaymark v. Bank of America, N.A., 783 F.3d 168 (3d Cir.
2015). In McLaughlin, we noted that the conduct plainly
violated § 1692e(2), which forbids the “false representation of
. . . the character, amount, or legal status of any debt.” 756
12
F.3d at 246. Thus, the materiality requirement, correctly
applied, effectuates the purpose of the FDCPA by precluding
only claims based on hypertechnical misstatements under §
1692e that would not affect the actions of even the least
sophisticated debtor. See Rosenau, 539 F.3d at 221 (noting
that the least sophisticated debtor standard “prevents liability
for bizarre or idiosyncratic interpretations of collection
notices” (quoting Quadramed, 225 F.3d at 354)).
IV.
It is therefore obvious that the inclusion of Lee’s name
itself on the information subpoena here is simply not material.
It could not possibly have affected the least sophisticated
debtor’s “ability to make intelligent decisions.” Donohue,
592 F.3d at 1034.4 Thus, the subpoena is not a
communication that violates the prohibitions on false
statements or representations in § 1692e or § 1692e(10).
Perhaps it is not surprising, given our discussion, that
one of Jensen’s main arguments is that the inclusion of an
incorrect signature on the subpoena rendered it invalid in
violation of § 1629e(9). Specifically, she argues that the
subpoena falsely represented itself to be a valid legal
document, when in fact it was an invalid legal document.
Section 1629e(9) prohibits “[t]he use or distribution of any
written communication which simulates or is falsely
represented to be a document authorized, issued, or approved
by any court, official, or agency of the United States or any
State, or which creates a false impression as to its source,
authorization, or approval.” This argument is also without
merit.
The information subpoena is not “falsely represented
to be a document authorized, issued, or approved by any court
4
The Collectors urge us to look not to a purely objective
standard, but rather to look to what an objective debtor in
Jensen’s situation, who (like Jensen) knew that Lee was not
the proper clerk, would have thought or done. We need not
consider whether this is a proper framing of the least
objective debtor standard, because the error still would not
have been material under either scenario.
13
[or] official.” Id. Under the New Jersey Rules, the clerk’s
signature does not verify that the clerk has seen or even knew
about the document. Rather, under New Jersey practice,
“[t]he preparation and sealing of a summons and most other
writs is the duty of the attorney issuing the writ, who is, for
that purpose, considered as the agent of the clerk of the
court.” Stanley v. Great Gorge Country Club, 803 A.2d 181,
190 (N.J. Super. Ct. Law Div. 2002) (quoting GEORGE S.
HARRIS, PLEADING AND PRACTICE IN NEW JERSEY 37–38
(Rev. Ed. 1939)) (emphasis omitted); see also N.J. Ct. R. 1:9-
1.
We are not persuaded that the information subpoena
bearing Lee’s name is actually invalid under New Jersey law.
Though the issue does not appear to be frequently litigated,
particularly in modern times, New Jersey courts have
repeatedly declined to invalidate similar documents based on
hypertechnical errors. See Stanley, 803 A.2d at 190 (“A
summons is not void notwithstanding irregularities in
omitting date, seal, and clerk’s signature, or the attorney’s
address.” (quoting HARRIS, supra, at 37–38)).
In Hirsch et al. v. De Puy, the New Jersey Supreme
Court was faced with a “summons [that] was not dated, . . .
carried no seal, and . . . although the name and title of the
clerk were typed in the space usually occupied by the
signature, there was no actual signature.” 166 A. 720, 721
(N.J. 1933) (per curiam). The court noted that each of these
errors violated state procedural rules, and it acknowledged
that “there must be a point at which the accumulation of
irregularities in a paper that assumes to be a writ deprives that
instrument of authenticity.” Id. However, in part because the
intended recipient would know “with certainty that [the
summons] is a court process,” the court held that the
summons was not void. Id. Certainly the information
subpoena in this case was less error-ridden than the one at
issue in Hirsch. Thus, it is inconceivable that the single small
error here somehow made the information subpoena invalid.
Moreover, where the state courts have remarked on the
importance of compliance with technical requirements, the
mistake at issue had the capacity to prejudice one of the
parties. For example, Jensen cites to Cavallaro v. Jamco
14
Property Management, where the court noted that “the
subpoena power is a significant one which must be exercised
in good faith and in strict adherence to the rules to eliminate
potential abuses.” 760 A.2d 353, 359 (N.J. Super. Ct. App.
Div. 2000). However, there, a plaintiff’s attorney’s failure to
include the defense attorney in communications with a
deponent resulted in the disclosure of privileged materials.
See id.; see also Crescenzo v. Crane, 796 A.2d 283, 284 (N.J.
Super. Ct. App. Div. 2002) (“An attorney failed to comply
with the provisions of the [New Jersey subpoena] Rule, and a
doctor, improperly responding to a discovery subpoena,
forwarded privileged records of his patient without notice or
authorization.”). There is no basis for this Court to conclude
that this subpoena is actually invalid under state law.
Therefore, Jensen’s argument that the error is material
because it misrepresents the nature of the subpoena, or that
Collectors violated § 1629e(9) by mailing her an invalid
subpoena, must fail.
Jensen’s remaining arguments are similarly unavailing.
Jensen tries to rely on a thread of federal case law holding
that, in some situations, actions taken by attorneys as debt
collectors are subject to more intense scrutiny than the acts of
ordinary debt collectors. See Campuzano-Burgos, 550 F.3d at
301 (“Under the [FDCPA], attorney debt collectors warrant
closer scrutiny because their abusive collection practices ‘are
more egregious than those of lay collectors.’” (quoting
Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir. 1989)).
This reliance is misplaced, as these cases arise out of
situations where attorneys improperly use their status as
attorneys to pressure or coerce debtors. See id.; see also
Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993)
(explaining that the use of a lawyer’s name and signature on
mass mailings in that case gave “the impression that the
letters were communications from an attorney” although the
letters “were not ‘from’ [the attorney] in any meaningful
sense of that word”). The Pressler attorney who signed the
information subpoena in this case was not using her status to
wrongly imply that legal action may be taken. She was
merely issuing a valid subpoena under New Jersey Rules.
Finally, we are unmoved by Jensen’s argument that
summary judgment was improper because materiality is a
15
mixed question of fact and law that must be presented to a
jury.5 Summary judgment is appropriate “[w]here the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). No
reasonable juror could find that the mistake in this case was
material. We will therefore affirm the District Court’s grant
of summary judgment to the Collectors.
V.
For the reasons set forth above, we will affirm the
District Court.
5
We have noted that whether contradictory language in a
notice would “confuse or mislead the ‘least sophisticated
debtor’ as to his statutory rights under the [FDCPA] to
validate and dispute the debt” is a question of law.
Quadramed, 225 F.3d at 353 n.2. However, we recognize
that at least one Court of Appeals has remarked that
“materiality is a mixed question of law and fact” and
explained that “often ‘whether a letter is misleading raises a
question of fact.’” Gillie v. Law Office of Eric A. Jones, LLC,
No. 14-3836, 2015 WL 2151755, at *14 (6th Cir. May 8,
2015). Though the parties dispute whether materiality is a
question of fact or law, we need not decide the issue, as the
Collectors would be entitled to summary judgment under
either standard.
16