- Posts by Zachary D. Miller
PartnerZach Miller is a financial services partner who focuses on consumer litigation and compliance. He has over fifteen years of experience acting as an important advisor to his clients, helping them navigate federal and state courts ...
Increased claims of identity theft by consumers have given rise to more disputes that accounts are being inaccurately reported. Our clients are seeing a dramatic increase in the number of identity theft-related FCRA lawsuits. To learn more, please join us for a webinar, "How to Defend Identity Theft Claims Under the FCRA" on Wednesday, August 4 from 11:30 am to 12:30 pm CDT. Panelists will discuss critical elements to a reasonable identity theft investigation and techniques for defending FCRA claims related to identity theft.
Panelists will also cover the duties of a furnisher of ...
This summer has been jam-packed with Telephone Consumer Protection Act (TCPA) developments. The Federal Communications Commission (FCC) issued a decision finding that peer-to-peer text messaging systems were exempt from the statue’s reach, using certain language that may be helpful in arguing to exclude other types of technology.[1] The U.S. Supreme Court declared the statute unconstitutional in Barr v. American Association of Political Consultants, Inc.,[2] only to determine that the unconstitutional provision was severable, thus saving the statute and, in fact ...
A .pdf copy of the Medley opinion can be found here.
While the Federal Communications Commission (“FCC”) has been clear that the Telephone Consumer Protection Act (“TCPA”) allows a consumer to revoke consent through “any reasonable means,” federal courts have been grappling with the interplay of consent that was provided in a bargained-for contract and subsequent attempts to revoke that consent. Back in 2017, the Second Circuit issued a landmark decision in Reyes v. Lincoln Auto. Fin. Svcs., 861 F.3d 51, 56 (2d Cir. 2017), holding that “the TCPA does not permit a party ...
A .pdf copy of the Gadelhak opinion can be found here.
My last blog post (found here) provided a background of the evolving definition of “automated telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA) and described the FCC’s long-running effort to expand the scope of the term. In recent times, the FCC’s repeated attempts to classify predictive dialers as an ATDS have come under scrutiny. First, the FCC faced issues with its interpretation in the case ACA Int’l v. FCC, 885 F.3d 687, 702-703 (D.C. Circ. 2018), which called into question the ...
A .pdf copy of the Glasser opinion can be found here.
The Telephone Consumer Protection Act (“TCPA” or the “Act”) has limited telephone calls that can be placed using certain automated equipment since 1991. However, since passage of the Act there has been considerable debate about the type of automated equipment subject to the Act’s restrictions. The TCPA specifically restricts the use of any “automated telephone dialing system” ("ATDS"). The statute defines ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called using a ...
On May 7, 2019, the Consumer Financial Protection Bureau (“Bureau” or “CFPB”) issued a Notice of Proposed Rulemaking (“NPRM”) to implement the Fair Debt Collection Practices Act (“FDCPA”). The full NPRM is 538 pages and can be found here. Among other things, the proposal attempts to set limits on the number of calls that debt collectors may place on a weekly basis, clarify how collectors may communicate using new technologies and require collectors to provide additional information to consumers to help them identify debts. The Bureau has set a deadline of Monday ...
In Belle Meade Title & Escrow Corp. v. Fifth Third Bank, et al., No. 3:17-cv-874, ECF No. 26, --- WL ---- (M.D. Tenn. Oct. 17, 2017), a federal district court granted Regions Bank's motion to dismiss the claims against it, recognizing -- in a case of first impression -- that banks do not owe a duty of care to non-customers under Tennessee law.
The plaintiff, Belle Meade Title & Escrow Corporation, is a title company that claimed to be the victim of a fraudulent check-floating/wire-transfer scheme. The plaintiff had received a check for approximately $400,000, which was drawn on an account ...
After months of wrangling, the U.S. Senate voted to pass substantive and impactful legislation on Tuesday evening regarding the Consumer Financial Protection Bureau. On July 10, 2017, the Bureau released one of its most controversial and impactful rules to date, prohibiting certain types of arbitration agreements in contracts between consumers and certain financial services companies. Against strong industry disapproval and pushback, the Arbitration Rule reflected the Bureau's focused determination to overhaul the use of consumer arbitration and to ban reliance on ...
Early in the morning on July 28, 2016, in coordination with the Consumer Financial Protection Bureau's (the "Bureau") field hearing on debt collection being held the same day in Sacramento, California, the Bureau released a detailed outline of proposals under consideration for debt collection rulemaking. While the proposals only cover third-party debt collection issues, the Bureau indicated that they plan to address first-party collectors and creditors with similar proposals at a later date. We expect that many of the same principles outlined in the third-party proposals will ...
It would be difficult to identify a federal circuit court of appeals that has released a larger number of influential consumer finance decisions in the last year than the Eleventh Circuit. And last week, the court continued its recent consumer finance trend. Before Friday's landmark FDCPA decision in Davidson v. Capital One (covered in a separate blog post), the court again waded into the turbulent waters of the TCPA. On Thursday, the Eleventh Circuit issued its decision in Murphy v. DCI Biologicals Orlando, LLC, --- F.3d ---, No. 14-10414 (11th Cir. Aug. 20, 2015), in which another ...
On Tuesday, the Eleventh Circuit Court of Appeals expanded the scope of conduct that is actionable under the Fair Debt Collection Practices Act ("FDCPA") to include communications directed to a debtor's attorney. However, the Court also said that such communications may not be actionable under a "least sophisticated consumer" standard and that a plaintiff may have to hurdle a higher bar to establish a violation. In Miljkovic v. Shafritz and Dinkin, P.A., et al., No. 8:14-cv-00635-VMC-TBM, 2015 WL 3956570 (11th Cir. 2015), the plaintiff debtor brought suit against debt ...
For several years, numerous businesses and industry groups have petitioned the Federal Communications Commission ("FCC") to provide clarity to the Commission's prior interpretations of the Telephone Consumer Protection Act ("TCPA"). Currently, the FCC is facing more than twenty (20) petitions asking the Commission to provide guidance and relief on many different topics, including the definition of an "autodialer," whether a consumer can revoke "prior express consent," and whether a business can be held liable for unknowingly placing calls to a cell phone that had ...
Three weeks ago, the U.S. Supreme Court raised eyebrows when it granted certiorari in Spokeo, Inc. v. Robins, --- S.Ct. ---, 2015 WL 1879778 (Apr. 27, 2015), where it appears the Court will decide whether a consumer has "standing" to assert a cause of action for statutory damages without having suffered actual damage. The decision to grant certiorari in Spokeo was surprising given that the Court ducked the chance to address the same issue several years ago, as discussed in our recent blog post "Will the U.S. Supreme Court Use Robins v. Spokeo to Finally Address "Standing" in the ...
Since the Constitution was ratified, 226 years ago, potential plaintiffs have been required to first establish that they have a "case or controversy" before a court can consider the merits of any legal claim. As the U.S. Supreme Court has phrased it, "the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue." Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). There are three components of standing:
1) the plaintiff has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or ...
In May 2013, a ruling from the U.S. District Court for the Southern District of Florida caused great concern among creditors and debt collectors by taking an unprecedented stance against the supremacy of orders issued by the Federal Communications Commission ("FCC") regarding the Telephone Consumer Protect Act ("TCPA"). In Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013), Judge Robert N. Scola, Jr. granted partial summary judgment on the plaintiff's TCPA claims against the defendant, Gulf Coast, which had obtained the plaintiff's cell phone ...
In Cherkaoui v. Santander Consumer USA, Inc., No. 4:13-cv-00467 (S.D. Tex. May 23, 2014), the U.S. District Court for the Southern District of Texas examined how a creditor may obtain "prior express consent" from a borrower and the level of evidence necessary for a borrower to survive summary judgment with claims of oral revocation of consent. The plaintiff in Cherkaoui obtained an automobile loan from the defendant, Santander Consumer USA, Inc. ("Santander"). On his credit application, the plaintiff provided his cellular telephone number. The plaintiff alleged that, despite ...
In White v. Sherman Financial Group, LLC, No. 3:12-cv-404, 2013 WL 5936679, 1 (E.D. Tenn. Nov. 4, 2013), the U.S. District Court for the Eastern District of Tennessee recently denied the plaintiff's partial motion for summary judgment and granted summary judgment in favor of the defendants on all but one the plaintiff's Fair Debt Collection Practices Act ("FDCPA") claims and, in the process, rendered a significant decision regarding the interplay between the FDCPA and filing state collection actions in Tennessee. In White, the plaintiff alleged the defendants, Sherman Financial ...
In Forrest v. Genpact Servs., LLC, 3:12-CV-2249, 2013 WL 4516479 (M.D. Pa. Aug. 26, 2013), the United States District Court for the Middle District of Pennsylvania held that a plaintiff bringing a Telephone Consumer Protection Act ("TCPA") claim under 47 U.S.C. § 227(b)(1)(A) is not required to allege that she actually answered the phone calls placed to her cellular telephone. Defendant Genpact Services, LLC, admitted to calling Plaintiff's cellular telephone over 225 times in a 54-day period using an automatic telephone dialing system. Plaintiff brought a TCPA claim against ...
The U.S. Court of Appeals for the Fifth Circuit recently held in Reinagel v. Deutsche Bank National Trust Co., No. 12-50569, 2013 WL 3480207 (5th Cir. July 11, 2013), that facially valid assignments can only be challenged for want of authority by the defrauded assignor. In Reinagel, the plaintiffs/borrowers alleged that the "robo-signed" assignments of their note and deed of trust were invalid and prohibited the defendant's foreclosure. First, the Fifth Circuit found the plaintiffs had standing to challenge the validity of the assignments of the note and deed of trust to Deutsche ...
In Jamison v. First Credit Services, Inc., 2013 WL 3872171 (N.D. Ill. July 29, 2013), the U.S. District Court for the Northern District of Illinois denied a motion for reconsideration filed by Plaintiff. Plaintiff's motion asked the court to reconsider its earlier denial of class certification of a Telephone Consumer Protection Act ("TCPA") action. Jamison involves an alleged violation of the TCPA after a debt collector, acting on behalf of American Honda Finance Corporation, allegedly called Plaintiff's cellular telephone multiple times without consent. Plaintiff filed a ...
In Grubb v. Portfolio Recovery Associates, LLC, No. 2:12-cv-301 (E.D. Tenn. July 10, 2013), the U.S. District Court for the Eastern District of Tennessee recently dismissed a Fair Debt Collection Practices Act ("FDCPA") claim against defendants for filing a false affidavit in a state collection lawsuit because the affidavit at issue clearly stated that it was only based on business records of the defendant. Furthermore, the court dismissed an additional FDCPA claim, which alleged that defendants sought an unauthorized rate of interest and attorneys' fees in their state court ...
A judge in North Carolina recently dismissed an action brought by Guilford County's Register of Deeds against twenty-nine defendants, including Mortgage Electronic Registration Systems ("MERS"), for a lack of legal standing to bring their claims, in Guilford Cty, ex rel. Jeff L. Thigpen, Guilford Cty. Register of Deeds v. Lender Processing Services, Inc., 12 CVS 4531 (N.C. Gen. Ct. J. Super. Ct. Div. May. 29, 2013). The Register of Deeds of Guilford County filed the civil action on behalf of Guilford County making several state law claims against the defendants, including unfair ...
In You et al. v. JP Morgan Chase Bank, N.A. et al., No.S13Q0040(Ga. May 20, 2013), the Supreme Court of Georgia ruled that the holder of a security deed seeking to exercise a power of sale is not required to also hold the underlying promissory note. Further, the Court held that a party exercising its right to foreclose as a holder of the security deed does not need to identify the holder of the note in the statutorily-mandated notice to debtor. The borrowers in this case primarily argued that JP Morgan Chase Bank, N.A. did not have the right to exercise power of sale because it was not the holder of ...
Claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., which prohibits, among other things, companies from calling an individual's cell phone without prior consent, often involve discovery requests for call logs and call reports. Recently, a California federal court held that a defendant may be required to produce this information even in the pre-certification stages of a class action suit. In a recent case, Knutson v. Schwan's Home Service, Inc., No. 12-cv-964-GPC, 2013 WL 1222116 (S.D. Cal. Mar. 25, 2013), the parties filed a document entitled ...
John Chiles and Zachary Miller were recently published in the American Bar Association's The Business Lawyer (Vol. 68, No. 2) with an article entitled: The Supreme Court Settles a Decade-Long Debate -- 2012 Survey of RESPA Developments. The article highlights important decisions issued by U.S. federal courts addressing the Real Estate Settlement Procedures Act ("RESPA") during 2012. Of particular importance is the Supreme Court's decision in Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034, --- U.S. ---- (2012), in which the Court unanimously settled a long-standing split in ...
The U.S. Supreme Court recently decided that a named class action plaintiff cannot prevent removal by stipulating to seek less than $5 million in damages before class certification, in Standard Fire Ins. Co. v. Knowles, 11-1450, --- U.S. ----, 2013 WL 1104735 (Mar. 19, 2013). The Class Action Fairness Act of 2005 ("CAFA") provides federal district courts original jurisdiction over civil class action lawsuits when "the matter in controversy exceeds the sum or value of $5,000,000." 28 U.S.C.A. § 1332(d)(2). The class must have more than 100 members and those members must be ...
Frank Springfield and Zachary Miller have written an article for the Business Law Section of the American Bar Association that was published in the Business Law Today. The article addresses the Consumer Financial Protection Bureau's ("CFPB") rule defining "larger participants" in the consumer debt collection market and the impact that the CFPB will have on the collection industry. The article also highlights changes that can be expected for attorneys practicing in this industry and recent decisions released by federal courts addressing the scope of the Fair Debt Collection ...
As Burr & Forman has offices located in five southeastern states (Alabama, Florida, Georgia, Mississippi and Tennessee), our attorneys have been actively involved in various forms of litigation involving Chinese drywall for the last several years. While standard Chinese drywall lawsuits have involved claims related to construction and products liability, a recent case handled by our financial services litigation attorneys involved the interplay between Chinese drywall and mortgage servicing. In Buckentin v. SunTrust Mortgage Corporation, No. 2:11-cv-00532-RDP, 2013 WL ...
The Tenth Circuit issued an opinion last week in Berneike v. CitiMortgage, Inc., 2013 WL 657032 (10th Cir. Feb. 25, 2013), addressing whether a district court properly dismissed a borrower's Real Estate Settlement Procedures Act ("RESPA") claim against CitiMortgage, Inc. ("Citi"). The subject complaint alleged that CitiMortgage, by failing to respond to multiple qualified written requests ("QWRs"), violated RESPA. On three different occasions in early 2010, the borrower sent a barrage of faxes to Citi, each alleging that Citi was improperly servicing the borrower's ...
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 ...
Declining to follow the majority of district court decisions within its circuit, the U.S. Court of Appeals for the Sixth Circuit, in Glazer v. Chase Home Finance LLC, --- F.3d ---, 2013 WL 141699 (6th Cir. Jan. 14, 2013), recently held that mortgage foreclosure constitutes debt collection under the Fair Debt Collection Practices Act ("FDCPA"). A borrower filed suit against his mortgage servicing company and its debt collection law firm, alleging violations of the FDCPA and state law arising out of a foreclosure action. The mortgage servicer and law firm moved to dismiss Glazer's ...
In Pennell v. Wells Fargo Bank, N.A., No. 12-60595 (5th Cir. 2013), the Fifth Circuit Court of Appeals had the occasion to address what constitutes a negligent misrepresentation under Mississippi law when a borrower and bank are negotiating a loan modification in an attempt to avoid foreclosure. The plaintiffs filed a lawsuit against the defendant mortgage servicing company after their home had been sold at a non-judicial foreclosure sale. The plaintiffs asserted a variety of claims, including, inter alia, wrongful foreclosure, slander of title, intentional and negligent ...