Consumer Finance Litigation Blog | Burr & Forman LLP

Middle District of Florida Defines Settlement Communications Allowed Under the FDCPA

Thu, 22 Dec 2016 09:00:01 -0500

On November 18, 2016, the United States District Court for the Middle District of Florida held that the communication of an unequivocal and non-coercive settlement offer does not violate the Fair Debt Collection Practices Act (the "FDCPA"). Vazquez v. Prof'l Bureau of Collections of Maryland, Inc., -- F. Supp. 3d --, 2016 WL 6822480, at *2 (M.D. Fla. Nov. 18, 2016). In Vazquez, the plaintiff alleged that a debt collector violated section 1692c(c) of the FDCPA by sending a communication offering to settle a debt (the "Settlement Offer") after the plaintiff disputed the debt. Id. at *1 ...

Illinois District Court Denies Motion to Certify TCPA Class Action

Frank Springfield, Kristen Peters Watson — Tue, 18 Oct 2016 09:00:02 -0400

In the consolidated cases Espejo v. Santander Consumer USA Inc., No. 11 C 8987, 2016 WL 6037625 (N.D. Ill. Oct. 14, 2016) and Levins v. Santander Consumer USA Inc., No. 12 C 9431, 2016 WL 6037 (N.D. Ill. Oct. 14, 2016), the U.S. District Court for the Northern District of Illinois denied Plaintiff Faye Levins' motion to certify a class pursuant Fed. R. Civ. P. 23(b)(3), finding that Levins failed to meet the prerequisites for class certification. While the court denied Levins' motion for class certification, it granted in part and denied in part Santander Consumer USA Inc.'s ...

D.C. Circuit Holds Structure of CFPB Unconstitutional, Vacates $109 Million Fine Arising out of Mortgage Lender's "Captive Reinsurance" Practice

Frank Springfield, Ryan J. Hebson — Thu, 13 Oct 2016 09:00:03 -0400

On Tuesday the D.C. Circuit Court of Appeals issued what is already being touted as a landmark ruling in PHH Corp. v. Consumer Financial Protection Bureau, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), holding in a 2-1 decision that the structure of the Consumer Financial Protection Bureau (the "CFPB"), and specifically its organization as a "single-Director independent agency" with no meaningful Presidential oversight, violates Article II of the United States Constitution, which in relevant part vests the authority to "take Care that the Laws be faithfully executed" in ...

Spokeo, Inc. v. Robins and the TCPA: The Fallout is as Clear as "Concrete"

Alan D. Leeth — Fri, 07 Oct 2016 09:00:04 -0400

In the wake of Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (May 16, 2016), the Supreme Court decision that had the chance to be legendary, but instead settled for punting back to the Ninth Circuit Court of Appeals, we are left wondering who the real winner was and what is the fallout for mere procedural violations of statutes for consumer claims?

Spokeo, Inc. v. Robins: Straight Back to the Ninth Circuit

In a 6-2 decision, with Justice Thomas concurring and Justices Ginsburg and Sotomayor dissenting, the Supreme Court held that that the Ninth Circuit Court of Appeals had failed to properly ...

Eleventh Circuit Rules that Debtors Who Surrender Real Property in Bankruptcy Cannot Oppose Foreclosure

Wed, 05 Oct 2016 09:00:05 -0400

On October 4, 2016, the Eleventh Circuit Court of Appeals ruled that chapter 7 debtors who file a statement of intention to surrender real property in bankruptcy cannot later contest a foreclosure action, and bankruptcy courts have broad power and authority to sanction violations. Failla v. CitiBank, N.A., case no. 15-15626 (11th Cir. October 4, 2016). The bankruptcy court in Failla reopened a chapter 7 bankruptcy case several years after entry of discharge and ordered the debtors to cease their defense of the bank's foreclosure action, threatening to vacate the discharge order for ...

District Court Holds Allegations of Cell Phone Charges Insufficient to Establish Article III Standing to Bring TCPA Action Under Spokeo

Frank Springfield, Ryan J. Hebson — Tue, 04 Oct 2016 09:00:06 -0400

In the wake of the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), a growing trend is emerging with respect to cases involving claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Indeed, while many early decisions held that "a violation of the TCPA is a concrete injury," see, e.g., Rogers v. Capital One Bank (USA), N.A., No. 1:15-cv-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016), more recently, some courts are requiring more. In fact, in Ewing v. SQM US, Inc. et al., Judge Cathy Ann Bencivengo of the Southern District of ...

CFPB Issues Examination Procedures for the Military Lending Act Rule

Mon, 03 Oct 2016 09:00:07 -0400

The Consumer Financial Protection Bureau ("CFPB") issued updated examination procedures it will use to assess lender compliance with the Military Lending Act rule ("MLA"). The MLA rule was amended in 2015 and the new requirements for lines of credit, installment loans, and deposit advances go into effect on October 3, 2016. Credit card issuers have a later compliance date of October 3, 2017. The MLA applies to active duty servicemembers and covered dependents. The amendment expands the types of products covered by the MLA, requiring enhanced disclosures, and restricting loan ...

Eighth Circuit: A Debt Collector May Call A Third Party More Than Once Without Violating § 1692b(3) of the FDCPA

Alan D. Leeth — Mon, 26 Sep 2016 09:00:08 -0400

In Kuntz v. Rodenburg LLP, No. 15-2777, - F.3d -, 2016 WL 5219884 (8th Cir. Sept. 22, 2016), the Eighth Circuit held that a law firm hired to collect a debt did not violate § 1692b(3) of the Fair Debt Collection Practices Act ("FDCPA") when it made multiple calls to a third party to obtain information about the debtor.[1] Section 1692b(3) prohibits debt collectors from communicating more than once with a person other than the debtor ("third party") in order to obtain information about the debtor's location unless the third party requests to be contacted or the debt collector "reasonably ...

Seventh Circuit Holds that a Validation Notice in a Complaint to Collect a Debt Violated §1692e of the FDCPA

Alan D. Leeth — Mon, 12 Sep 2016 09:00:09 -0400

In Marquez v. Weinstein, Pinson & Riley, P.S., No. 15-3273, - F.3d -, 2016 WL 4651403 (7th Cir. Sept. 7, 2016), the Seventh Circuit Court of Appeals held that a validation notice in a complaint to collect a debt violated the Fair Debt Collection Practices Act ("FDCPA"). The ruling interpreted § 1692e of the FDCPA, which prohibits debt collectors from using "any false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. § 1692e. The Seventh Circuit found that the validation notice violated § 1692e because the validation notice was ...

Fourth Circuit Falls in Line with Second and Eighth Circuits Holding that Filing a Proof of Claim on a Time-Barred Debt Does Not Violate the FDCPA

Alan D. Leeth, Rachel R. Friedman — Tue, 30 Aug 2016 09:00:10 -0400

In Dubois v. Atlas Acquisitions LLC, Case No. 15-1945 (4th Cir. Aug. 25, 2016), the Fourth Circuit Court of Appeals held in a 2-1 decision that filing proofs of claim on time-barred debts does not violate the Fair Debt Collection Practices Act ("FDCPA"), at least where state law preserves the right to collect on the payment. In so holding, the court sided with the Second and Eighth Circuit Courts of Appeals in a circuit split regarding the viability of FDCPA claims premised on proofs of claim filed in a debtor's bankruptcy case.

The Fourth Circuit first held that filing a proof of claim is ...