Consumer Finance Litigation

The U.S. District Court for the District of Colorado recently decided that an offer of judgment with regard to all claims between a plaintiff and defendant did not moot all of the plaintiff's FDCPA claims pursuant to Rule 68 of the Federal Rules of Civil Procedure, in Orrick v. Midland Credit Management, Inc., No. 11-cv-03133-PAB-KMT, 2013 WL 657877 (D. Colo. Feb. 22, 2013). In Orrick, the plaintiff's complaint alleged the defendant violated the Fair Debt Collection Practices Act ("FDCPA") by communicating information regarding the plaintiff's debt to a credit reporting agency, but failing to report that the debt was disputed. Pursuant to Rule 68, the defendant made an offer of judgment to the plaintiff for one thousand one dollars ($1,001.00), plus costs and reasonable attorney's fees. The offer of judgment stated that it was "to be in total settlement of any and all claims by Plaintiff against Defendant." The plaintiff failed to accept the offer of judgment within the timeframe offered and the defendant subsequently filed a motion to dismiss. The defendant's motion to dismiss argued the plaintiff's claims were moot because the offer of judgment for $1,001.00, plus costs and attorney's fees, constituted a full and complete settlement of all damages available to the plaintiff under the FDCPA. Although undecided in the Tenth Circuit, the court noted that the Third and Seventh Circuits had previously held that a Rule 68 offer of judgment for complete relief to which the plaintiff was entitled thereby mooted certain claims. The Colorado federal court declined to decide that issue, but instead denied the defendant's motion on the grounds that the language in the offer of judgment stating that it was "in total settlement of any and all claims by Plaintiff against Defendant" was ambiguous and therefore could not moot the plaintiff's claims under Rule 68. In plaintiff's response to the motion to dismiss, she alluded to new violations having occurred since the filing of the lawsuit. Because the wording of the offer of judgment might have precluded her from filing a new case, the court found it did not offer her full compensation for the amount she could potentially have recovered against the defendant and, therefore, her failure to accept the Rule 68 offer did not moot her claims. The court specifically found the terms "total settlement" and "any and all" were ambiguous. The court held that a defendant could not invoke Rule 68 if the terms of the offer of judgment were ambiguous because "the offeree must know what is being offered in order to be responsible for refusing the offer." (quoting Arkla Energy Res., a Div. of Arkla, Inc. v. Roye Realty & Developing, Inc., 9 F.3d 855, 867 (10th Cir.1993)). For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.