The court’s opinion is restated in condensed form. As seen below, the opinion demonstrates the absurd legal arguments Pressler and Pressler often makes in fending off FDCPA violations. While there has been a recent spate of successes for Pressler and Pressler, this case says that consumers do not have to hyper-technically plead their FDCPA lawsuits. Pressler and Pressler's procedural attempts to beat back this to-be-certified class action rightfully failed.

WAITKUS v. PRESSLER & PRESSLER, L.L.P.
Civil Action No. 11-6531-SRC
United States District Court, D. New Jersey.
March 2, 2012.

This matter comes before the Court on motion by Defendant Pressler and Pressler, L.L.P. to dismiss the Complaint pursuant to the Rules. Lorraine Z. Waitkus has opposed the motion.

BACKGROUND

This action arises under the Fair Debt Collection Practices Act ("FDCPA"). The following facts are alleged in the Complaint:

Plaintiff a resident of New Jersey, sells real estate for a living. All of her earnings are based on commissions from those sales. According to the Complaint, Defendant Pressler and Pressler is a New Jersey law firm concentrating in the field of consumer debt collection.

Waitkus allegedly incurred debts. Pressler and Pressler initiated an action in New Jersey state court to collect on one of the debts. A default judgment was entered against Waitkus in the collection action. Pressler and Pressler, filed a motion in the collection action captioned "Motion To Turnover Funds." Despite the label given to the motion, Waitkus alleges that what Pressler and Pressler actually sought to do was execute the judgment upon her commissions. The Complaint avers that Pressler and Pressler’s Motion To Turnover Funds failed to adhere to various notice requirements imposed by New Jersey court rules in that it did not state (1) that it was an application for wage execution; (2) what limits federal and state law placed on wage execution; (3) that the non-moving party has a right to oppose the application and demand a hearing by notifying the Court within 10 days. According to the Complaint, based on this faulty notice, Waitkus did not submit her opposition within the time provided by court rules, and a judge in the collection action entered the proposed form of order which had been submitted by Pressler and Pressler.

Pressler and Pressler thereafter used the collection action order to obtain a writ of execution. Waitkus alleges that Pressler and Pressler attempted to execute upon 100% of her commissions. She alleges that to stop the execution and preserve her income, Waitkus was forced to hire an attorney to file for bankruptcy on her behalf. She further alleges that, with the assistance of another attorney, she filed a motion to vacate the order on which Pressler and Pressler obtained the writ of execution. That motion, the Complaint states, was granted for failure by Pressler and Pressler to provide notice as required by New Jersey court rules.

Waitkus initiated this putative class action. The sole count in her Complaint pleads for relief under the FDCPA for Pressler and Pressler's alleged violations of that statute.

ANALYSIS

Congress enacted the FDCPA "to eliminate abusive debt collection practices." 15 U.S.C. 1692(e). Persons aggrieved by a debt collector's violation of any one or more of the statutory requirements may seek legal redress pursuant to the private cause of action created by the statute. 15 U.S.C. 1692k. Pressler and Pressler argues that Plaintiff's Complaint is deficient because it fails to cite what provisions of the FDCPA have allegedly been violated by Pressler and Pressler’s actions.

Pressler and Pressler’s argument completely misapplies the federal pleading requirements. The Rules do not impose a standard that requires the legal precision Pressler and Pressler appears to demand. Pressler and Pressler does not cite a single authority supporting its argument that the Complaint fails to state a claim upon which relief may be granted.

The FDCPA prohibits Pressler and Pressler from using "unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. 1692f. The statute identifies, without limitation, various practices which will be considered to run afoul of that prohibition. Id. Among these is the collection of any amount not permitted by law. 15 U.S.C. 1692f(1). The Complaint alleges that Pressler and Pressler attempted to execute the turnover order against 100% of Plaintiff's commission-based earnings, which exceeds federal and state statutory caps of 25% and 10%, respectively, on executions against income and earnings. This factual allegation, assumed to be true, plausibly states that Defendants violated the FDCPA. Plaintiff also alleges that Defendants failed to adhere to explicit state court rules concerning the notice that must be given to a debtor against whom wage execution is sought. She avers that Pressler and Pressler misleadingly identified its application as one for a turnover of funds, without disclosing that it was an application for wage execution and without providing notice of the federal and state limitations on wage executions. In short, the factual allegations of the Complaint, assumed to be true for purposes of this motion, plausibly state that Plaintiff is entitled to relief under the FDCPA.

Pressler and Pressler has also argued that Plaintiff's plea to recover actual damages under the FDCPA must be stricken for failure to allege any facts that plausibly demonstrate that she incurred such damages. The FDCPA entitles a person aggrieved by a debt collector's failure to comply with the statute to "any actual damage sustained by such a person as a result of such failure." 15 U.S.C. 1692k(a)(1). Plaintiff avers that as a result of Defendants' unlawful attempt to execute against her earnings, Plaintiff was forced to hire a lawyer to file a bankruptcy petition for protection against this execution. Clearly, this allegation states an actual monetary loss to Plaintiff as a result of the allegedly unlawful collection practice.

CONCLUSION

For the foregoing reasons, the Court will deny Pressler and Pressler’s motion to dismiss the Complaint.