Photo: Shutterstock

A Pennsylvania federal judge has certified a class action against a debt collection firm that allegedly sent out thousands of deposition notices to lure debtors into appearing for settlement talks.

U.S. District Judge Berle Schiller of the Eastern District of Pennsylvania ruled in Barenbaum v. Hayt, Hayt & Landau to certify the class action against Eatontown, New Jersey-based firm Hayt, Hayt & Landau over allegations that the firm's practices violated the Fair Debt Collection Practices Act. The judge's ruling further granted summary judgment to the plaintiffs on allegations that the firm's conduct violations the FDCPA's ban against using false, deceptive or misleading means.

The law firm, which also won summary judgment dismissals on the claims that the conduct was harassing and unconscionable, had argued the deposition notices were not misleading, since the attorneys had prepared questions for those who appeared for the supposed depositions. Placing the the party under oath and hiring a court reporter, the firm argued according to Schiller, were "incidental."

Schiller, however, disagreed.

"These 'procedural' features are not merely formalities, they ensure that the information learned at a deposition can be relied upon," Schiller said. "Thus, while HHL devised questions of counsel appearing at depositions to ask judgment debtors, this does not amount to an intention to take a deposition."

In Tuesday's ruling, Schiller also waded into the question of whether defendants can invoke the bona fide error defense for misinterpreting state law—an issue left open following the U.S. Supreme Court's 2010 decision in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, which has split district courts across the country. Ultimately, Schiller rejected the law firm's argument that the defense should be applied to misinterpretations of state law.

"First, ignorance of a law almost never excuses its violation," he said.

Yitzchak Zelman of Marcus & Zelman, who is representing plaintiff Daniel Barenbaum, said that with the class certification and summary judgment ruling, the case is now headed to the damages phase.

"Using deposition subpoenas to get debtors to show up to an in-person meeting, just so they can then be pressured into settling their debts, is flat-out wrong," Zelman said in an emailed statement. "We applaud the court's finding that the such abusive practices are prohibited by the FDCPA."

The law firm's counsel, Shannon Miller of Maurice Wutscher, did not return a call seeking comment Friday.

According to Schiller, Barenbaum's card account was charged off with a more than $1,000 balance in 2014. The account was eventually soled to Midland Funding, which then hired Hayt, Hayt & Landau to help collect. After the firm obtained a default judgment against Barenbaum in Bucks County court, the firm sent Barenbaum post-judgment interrogatories that included an offer to settle the debt, Schiller said.

After Barenbaum did not reply, the firm sent Barenbaum a "Notice of Deposition in Aid of Execution," which directed him to "appear and testify at a deposition." Included in the package Barenbaum received was a page saying that, as an alternative to the deposition, Barenbaum could settle the debt at a 20% reduced rate.

Barenbaum subsequently contacted the firm, and was told he was required to attend.

Barenbaum appeared at the location with his brother, who is an attorney, and, according to Schiller, although the law firm's attorney was there, there was no court reporter or anyone else who could administer an oath.

Although Schiller noted there was disagreement between the parties about what happened next, with the plaintiff contending there were discussions about possibly "writ[ing] off" the debt, Schiller said the lawyer reported back to the firm that Barenbaum had no assets to satisfy the debt.

In resolving the summary judgment issue, Schiller noted that the firm regularly conducted these post-settlement "depositions," and that instructions the firm provided to its lawyers indicated that the purpose of the appearances was to "obtain payment for balance in full or enter a voluntary settlement with the defendant." The instructions also told attorneys not to administer an oath to the defendant, but to keep clear notes because the firm had not retained a court reporter.

Schiller also noted the firm's employees were instructed to schedule between 30 and 90 depositions for every 2.5-hour time slot, since between 4% and 6% of those contacted typically appeared.

Schiller said Barenbaum could not show that the conduct had been harassing, or that it was unfair or unconscionable, but when it came to the conduct being allegedly misleading, Schiller said here was no genuine dispute of fact.

"The least sophisticated debtor—and indeed, debtors of significantly greater sophistication—would read the notice to say that HHL intended to conduct a deposition when at most HHL sought only an informal conversation regarding the debtor's ability to satisfy his or her debt," Schiller said. "The evidence uniformly shows that, as a matter of policy, HHL never intended to take any of the steps necessary to depose Barenbaum or any other recipients of the notice."

Read the opinion: