08‑1081 ANN CASSTEVENS v. DANIEL SMITH AND SHANNON SMITH; from Smith County; 6th district
(06‑07‑00116‑CV, 269 SW3d 222, 10‑23‑08, pet denied June 2009)
Unlawful Collection Practices
Casstevens also alleged the Smiths violated the Texas Finance Code by using threats or coercion,
harrassment or abuse, unfair or unconscionable means, fraudulent acts, or deceptive acts and thereby
also violated Section 27.01 of the Texas Business and Commerce Code. See Tex. Fin. Code Ann. §§
392.301-.306 (Vernon 2006).
Section 392.304(a) states that a collector may not use a "fraudulent, deceptive, or misleading
representation that employs the following practices . . . ." Casstevens states that there is summary
judgment proof of three of the practices.
(1) using a name other than the:
(A) true business or professional name or the true personal or legal name of the debt collector while
engaged in debt collection;
. . .
(8) misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the
consumer debt's status in a judicial or governmental proceeding;
. . . .
(19) using any other false representation or deceptive means to collect a debt or obtain information
concerning a consumer.
Tex. Fin. Code Ann. § 392.304.
The summary judgment proof in reference to the first claim shows that the collection proceeding was
begun not by those claiming ownership, or even in the name of their company, but in the individual
name of one of their employees, Clark. In her deposition, Clark said that she signed it in that fashion as
instructed by one of the Smiths. However, it also appears that she was using (as the debt collector) her
true personal name. Although this does have the potential for confusion, as an individual who appears,
essentially out of nowhere, to claim to be entitled to money--it is nonetheless technically within the ambit
of the statute. See discussion, 28 Stephen Cochran, Texas Practice: Consumer Rights & Remedies §
15.13 (3d ed. 2002). All this statute requires is a finding that the "true business or professional name or
the true personal or legal name of the debt collector while engaged in debt collection [was used]." Tex.
Fin. Code Ann. § 392.304. While this pleading may have been subject to other exceptions or legal
issues, the proper name, Michelle Clark, was listed as the debt collector.
But, by proceeding in this manner, an issue is raised as to whether the Smiths violated a provision in
the statute which disallows "using any other false representation . . . to collect a debt . . . ." Tex. Fin.
Code Ann. § 392.304. The pleading filed in the justice court names only Michelle Clark as the plaintiff.
In the body of the pleading, she is identified as the "plaintiff (landlord)." It is further alleged that the
plaintiff (Clark) entered into an agreement with Casstevens for the payment of rent, that plaintiff
demanded possession of the premises, and requested the court to grant her a judgment of possession.
The pleading is signed by Michelle Clark without any indication that she is acting as an agent for or on
behalf of the Smiths. The evidence is not disputed that Clark was not the owner or landlord of the
property, did not enter any agreement with Casstevens, and consequently was not authorized to obtain
a judgment as alleged. We find the trial court erred in disposing of this issue by a summary judgment.