A Buffalo law firm that served a threatening and inaccurate debt collection summons on a debtor is not liable for Fair Debt Collection Practices Act damages because the contested statement, while “technically false,” was immaterial, a Western District judge has held. Broughman v. Chiari & Ilecki, 12-cv-131, arose after the firm, which concentrates on collections, sent a summons to the debtor advising him that if he did not respond a default judgment would be entered “without further notice.” The debtor claimed the statement is contrary to New York Civil Practice Law and Rules 3215, which requires “additional notice” before the entry of a default judgment in an action based on nonpayment of a contractual debt.

Western District Judge William Skretny (See Profile) said the “contested language clearly suggests that Defendant…would be entitled to a judgment based on Plaintiff’s nonappearance without doing anything beyond serving the summons and complaint,” which is inaccurate. However, Skretny said the plaintiff could not establish a claim for damages because he could not explain how he was mislead or how the statement would coerce an unsophisticated consumer. “The most that can be assumed is that the statement would inform even the least sophisticated consumer that he has a specified time in which to act, and prompt him to consult with an attorney, answer the complaint pro se, or take some other action to protect his interests,” Skretny said. “That is precisely what happened here.”