Posts from February 2013.

Marx v. General Revenue Corp.

United States Supreme Court

Opinion Date: February 26, 2013

On Tuesday, the Supreme Court of the United States issued an opinion in Marx v. General Revenue Corp., 568 U.S. ___, 2013 WL 673254 (February 26, 2013), holding that "a district court may award costs to prevailing defendants in Fair Debt Collection Practices Act ("FDCPA") cases without finding that the plaintiff brought the case in bad faith and for the purpose of harassment." Id. at 2. 15 U.S.C. § 1692k(a)(3) of the FDCPA allows for the recovery of attorney's fees and costs by a defendant in an ...
Posted in: FDCPA

The Sixth Circuit issued an opinion last week in Christian County Clerk v. Mortgage Electronic Registration Systems, Inc., et al., 2013 WL 565198 (6th Cir. Feb. 15, 2013), addressing whether the district court properly dismissed two Kentucky county clerks' complaint against MERS and fifteen financial institutions for violations of state recording statutes. The subject complaint alleged that the Defendants, by establishing and participating in the MERS system, violated Kentucky law by failing to record mortgage assignments and, more specifically, created MERS "to enable its ...

Posted in: Kentucky

A New Jersey federal district court recently denied a motion to reconsider its previous holding that state law limitations on class actions do not apply to TCPA claims filed in federal court. At issue in the case, Landsman & Funk, P.C. v. Skinder-Strauss Associates, No. 08-3610, 2013 WL 466448 (D.N.J. Feb. 8, 2013), was a New York procedural law, C.P.L.R. § 901(b), which prohibits statutory class actions unless the statute creating liability explicitly provides for recovery in the form of class actions. The court had previously determined that the statute would apply under a choice of ...

Posted in: New Jersey, TCPA
We have many clients doing business in Tennessee who are regularly forced to navigate the somewhat confusing rules regarding filing appeals from General Sessions Court to Circuit Court. Appeals are often required in smaller collections cases, in which collectors may receive unfavorable verdicts in General Sessions Court. Oftentimes this may be due to the misapplication of a procedural or evidentiary rule that can be resolved in the Circuit Court. In other situations, debtors may appeal General Sessions judgments and may pair their appeal with a case in federal court alleging a ...
Posted in: Tennessee
In two related opinions issued last week, Arutyunyan v. Cavalry Portfolio Services, et al., Case No. CV-12-4122, 2013 WL 500480 (C.D. Cal. Feb. 11, 2013) and Arutyunyan v. Cavalry Portfolio Services, et al., Case No. CV-12-4122, 2013 WL 500452 (C.D. Cal. Feb. 11, 2013), the United States District Court for the Central District of California ordered a debtor's attorney to pay attorneys' fees and costs to two defendants after a lawsuit was dismissed for the attorney's failure to prosecute it. On May 11, 2012, Ashkhen Arutyunyan ("Plaintiff") filed a complaint against several ...
Posted in: California, FCRA, FDCPA

The United States District Court for the Southern District of California gave its preliminary approval to a $17.1 million settlement fund in a class action brought under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § § 227 et seq. in Malta v. Federal Home Loan Mortgage Corporation, et al., No. 10-CV-1290 BEN (NLS), 2013 WL 444619 (S.D. Cal. Feb. 5, 2013). In Malta, the plaintiffs alleged that one of the defendants, a loan servicer, violated the TCPA by calling the cellular phones of account-holders "without 'prior express consent,' using an 'automatic telephone dialing ...

Posted in: TCPA
In seeming contradiction to a line of recent federal court cases which had held that a debt collector's filing suit to collect a debt without evidence to prove its claim did not, in itself, amount to a violation of the FDCPA, a federal district judge in the Southern District of Alabama recently denied a debt collector's motion for judgment on the pleadings based on similar allegations. The court found that the plaintiff's allegations went beyond the allegations at issue in the other cases by alleging not only that the debt collector had no evidence at the time it filed suit, but that it had no ...

In Tye v. LJ Ross Associates, No. 11-15195, 2013 WL 424765 (E.D. Mich. Feb. 4, 2013), the U.S. District Court for the Eastern District of Michigan held that a high frequency of phone calls cannot alone prove a debt collector's intent to harass under 15 U.S.C. § 1692d, a provision of the Fair Debt Collection Practices Act ("FDCPA"). In Tye, the plaintiff-debtor brought multiple claims against the defendant debt-collector under the FDCPA, including a claim under section 1692d, which prohibits a debt collector from "engag[ing] in any conduct the natural consequence of which is to harass ...

Posted in: FDCPA

The Florida Supreme Court's opinion in Pino v. Bank of New York, 38 Fla. L. Weekly S78a (Fla. Feb. 7, 2013) is an important opinion concerning voluntary dismissal of actions where fraud on the Court has been alleged by the Defendant. In Pino, the Florida Supreme Court upheld the Fourth District Court of Appeal, and held that a trial court lacks jurisdiction to reinstate a dismissed action to award sanctions for fraud on the Court, except when the fraud, if proven, resulted in plaintiff securing affirmative relief to the detriment of the defendant, and upon obtaining that relief, the ...

Posted in: Florida, Fraud
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