Roofer nailing asphalt shingles with air gun. Photo: Oleksandr Khokhlyuk/Shutterstock.com

When a lawyer sends a demand letter for a client, does that make her a debt collector?

That's the question in a lawsuit by a Dallas-area attorney who became embroiled in a billing dispute with a roofing company that worked on his property. Eventually, plaintiff Shawn Jaffer sued a law firm that was trying to collect the roofers' debt.

In a case that explores case law about about what makes a law firm a debt collector, plaintiff Jaffer alleges that Kelly M. Davis & Associates is a debt collector and engaged in illegal debt collection practices.

The firm's position is that statutes and case law say a law firm is only a debt collector if that's its principal practice area, said a Feb. 19 motion for summary judgment. Yet the Davis firm only filed one debt collection lawsuit in the past five years. During that time, its debt collection work has taken up a range of just 0.3% to 3% of its total annual work.

It would turn well-settled case law on its head to say any lawyer who sent a demand letter for a client is a debt collector, said the Davis firm's attorney, John G. Browning.

"I would call it ill-advised," said Browning, partner in about Jaffer's lawsuit. "Anyone who files a lawsuit against a lawyer—and it's not their lawyer—the day after they get a demand letter, is a little too quick on the trigger."

Jaffer didn't return a call seeking comment before deadline.

Big bill

According to his complaint in Jaffer v. Kelly M. Davis & Associates, he agreed to pay $14,300 for roofing repairs and other hail damage repairs to his family home. He did pay some of the money, but the price increased. In the end, the roofing company, Elevated Roofing, billed him for $18,500.

He offered to give nearly $5,700, which represents the balance of what he would have owed if the price had stayed at the $14,300 that he says he agreed to pay. By this point, Elevated has increased its bill to about $19,200, the complaint said. He argues that the bill included charges for gutters and downspouts that he rejected and were never installed.

"Elevated refused to adjust their bill," said the complaint.

In November 2019, the Davis firm sent a debt collection letter to Jaffer for $19,200, the complaint said. While the letter said the firm was a debt collector, Jaffer alleged that the Davis firm doesn't have a surety bond for debt collection on file with the Texas Secretary of State, and therefore, it's practicing illegal debt collection.

He's suing the firm for violations of the Fair Debt Collection Practices Act and the Texas Debt Collection Act. He is asking the court to certify a class action of Texas consumers who got debt collection letters from the Davis firm.

In addition to the Davis firm's arguments that it is not a debt collector, the firm also argued in a motion to dismiss that attorney immunity shields it from Jaffer's claims, because it had sent the demand letter while acting as an attorney for its client.

Family Home?

Although Jaffer's version of the story is that Elevated did the repairs on his family home, the Davis firm has told another side.

The firm's response to one of Jaffer's motions, which sought to lift a mechanic's lien on his property, said that Elevated made the repairs on one of Jaffer's homes that had tenants living in it. The response claimed that Jaffer owns two houses and he's claimed both as his "homesteads" with the Collin County Appraisal District.

He had to swear under oath to apply for that homestead exemption, said the response, which alleges he did not tell the truth under oath.

Also, while the lawsuit was pending, he removed the homestead exemption from the home where he actually lives, and kept the exemption on the home with tenants. The Davis firm alleged he it to try to bar Elevated from its rightful lien.

"Jaffer is still making false statements to the appraisal district that this is his principal residence and that no residence homestead exemption can be claimed by the property owner on any other property," the response said.