District Court (Pa.) Finds No Violation of 15 USC 1692e(5) of FDCPA For False Statements Made in Lawsuit; Illegal Action is Itself an Action, not a “Threat” of Illegal Action

In Dicesari v. Asset Acceptance LLC, 2012 WL 4108944 (E.D.Pa. 2012), Judge Joyner found that false statements in a lawsuit complaint were not actionable under 15 USC 1692e(5) that prohibits a threat to take any action that can not legally be taken or that is not intended to be taken.  The lawsuit is not a “threat”, it is an action, and therefore the section does not apply.

Plaintiff alleges that Defendants violated this subsection by threatening to take the “legal action of a money judgment against plaintiff” upon the alleged falsely claimed debt. (Am.Compl.¶ 16, Doc. No. 10). Defendants argue that the state court complaint did not violate § 1692e(5), because they did not threaten to take action, but instead actually took action by filing the complaint. (Defs. Mem. of Law in Supp. of Its Mot. to Dismiss at 6, Doc. No. 12). Courts encountering situations analogous to this one have come down on both sides of whether conduct that is actually undertaken, and not just merely threatened, can support a claim under § 1692e(5). See e.g., Fick v. American Acceptance Co., No. 11–229, 2012 WL 1074288, at *4 (N.D.Ind. Mar.28, 2012) (holding that § 1692e(5) applies only to threats of illegal action, and not actual illegal action); Bradshaw v. Hilco Receivables, LLC, 765 F.Supp.2d 719, 730 (D.Md.2011) (interpreting § 1692e(5) to include taking illegal action). ¶  This Court finds the reasoning of the courts finding that § 1692e(5) applies only to threats of illegal action to be persuasive. When interpreting a federal statute, “the role of the courts … is to give effect to Congress’s intent.” Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir.2009) (quoting United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009)). “Because it is presumed that Congress expresses its intent through the ordinary meaning of its language, every exercise of statutory interpretation begins with an examination of the plain language of the statute.” Id. Where the language of the statute is plain, “the sole function of the courts … is to enforce it according to its terms.” Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 199 (3d Cir.2004) (quoting Lamie v. United States Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)). The plain language of § 1692e(5) extends only to threats of action that cannot legally be taken. Thus, this Court concludes that § 1692e(5) applies to threats to take action that cannot legally be taken, but not illegal actions that are actually taken. Because the Plaintiff only alleged an actual action taken-namely, the filing of the state court complaint-and points to no other threats of action, the Court dismisses Plaintiff’s claim under § 1692e(5).