The United States District Court for the District of New Jersey recently held that a tax sale foreclosure complaint filed against the wrong defendant did not violate the Fair Debt Collection Practices Act (“FDCPA”) because the plaintiff failed to allege that the foreclosure sought a “debt” under the FDCPA.  See Weiss v. McElwee, 2016 WL 96144 (D.N.J. 2016).  In the case, the defendants had filed a tax sale foreclosure complaint against a “Sanford Weiss” who owned a property in Hoboken, but sent a letter to and served the summons and complaint on plaintiff, another individual with the same name who claimed to have no interest in the property at issue.  According to the defendants, they agreed to dismiss the foreclosure complaint after plaintiff’s attorney promised that plaintiff would not file a FDCPA action against them.  Plaintiff denied this allegation.  After defendants dismissed the complaint, plaintiff filed this action, claiming that defendants had violated the FDCPA by attempting to collect a debt from plaintiff that they could not legally collect, among other allegations.  Defendants filed a motion for summary judgment, arguing that unpaid taxes are not a “debt” under the FDCPA.  Though the plaintiff did not dispute that unpaid taxes were not “debts” under the FDCPA, he opposed the motion by noting that the foreclosure complaint also sought unpaid sewer fees, which could constitute a debt under the FDCPA.  The Court nonetheless granted defendants’ motion.  It found that sewer charges may constitute a “debt” only if the consumer “voluntarily elects to avail himself” of the services, but “if the amount of the obligation imposed for sewer services is mandatory, then it does not qualify as a ‘debt.’”  Here, defendants argued that they only mentioned sewer charges in their foreclosure complaint “as part of cautionary boilerplate.”  Because the plaintiff was unable to allege that the unpaid sewer charges ever even existed, let alone that they were voluntarily incurred, he did not state a claim under the FDCPA.  

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.