In Woods v. LVNV Funding, LLC, --- F. 4th --- (2022), the Seventh Circuit Court of Appeals affirmed the dismissal of FDCPA and FCRA claims based upon the defendants’ collection and reporting of a fraudulently opened account.
The plaintiff, Kevin Woods, alleged someone opened an American Airlines credit card account in his name and purchased a one-way flight. American closed the account and sold it to LVNV Funding, LLC, which placed it with Resurgent Capital Services, L.P. for collection. When Woods received collection letters, he disputed the debt and told Resurgent the account ...
In the latest development in Hunstein v. Preferred Collection and Management Services, Inc., Case No. 19-14434, the full Eleventh Circuit Court of Appeals has vacated the previous panel’s opinion and will rehear the case en banc at a later date. In the original Hunstein opinion, the court reversed the dismissal of an action brought under the Fair Debt Collection Practices Act (“FDCPA”) that alleged a debt collector had violated the third-party disclosure provisions of the FDCPA by using a third-party mail vendor. The decision sent shockwaves through the debt collection ...
On August 31, 2021, the Seventh Circuit Court of Appeals reversed a summary judgment decision from the United States District Court for the Northern District of Illinois, and remanded the action with instructions to dismiss for lack of subject matter jurisdiction. See Wadsworth v. Kross, Lieberman & Stone, Inc., No. 19-1400, 2021 WL 3877930 (7th Cir. 2021). The Seventh Circuit reasoned Plaintiff’s lack of Article III standing with respect to her claims brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § § 1692 et seq.
As background ...
In its 2016 decision in Avila v. Riexinger & Associates, LLC, the Second Circuit Court of Appeals held that an attempt to collect a debt that states the current balance owed but does not disclose whether interest and fees are accruing is misleading in violation of the Fair Debt Collection Practices Act (“FDCPA”) Section 1692e. This decision created a cottage industry of lawsuits seeking to pounce on this seemingly technical violation in many businesses’ collection notices.
Recently, however, the Second Circuit has recognized exceptions to the Avila decision, most recently ...
The ruling by the Eleventh Circuit Court of Appeals in Richard Hunstein v. Preferred Collection and Management Services, Inc. raises significant concerns for debt collectors who use vendors for mailing and other types of services that require the sharing of information relating to consumer debts. By ruling that such arrangements can violate the prohibition on sharing information about consumer debts with third parties under section 1692c(b) of the Fair Debt Collection Practices Act ("FDCPA"), the panel’s decision has forced many debt collectors to rethink existing business ...
In a decision that could throw the debt-collection industry into turmoil, on April 21, 2021, the Eleventh Circuit Court of Appeals released its opinion in the case Hunstein v. Preferred Collection & Mgmt. Servs., Inc., No. 19-14434, 2021 WL 1556069 (11th Cir. Apr. 21, 2021). The crux of the opinion is the court’s holding that a debt collector faces potential liability under the FDCPA for transmitting a consumer’s personal information to any third-party not explicitly designated by the statute. The potential implications of this decision are far-reaching.
The underlying facts ...
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 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 ...
In Jenkins v. Midland Credit Management, Inc.,[1] the U.S. Bankruptcy Court for the Northern District of Alabama held that the filing of a proof of claim based on a time-barred debt cannot give rise to a claim for damages under the Fair Debt Collection Practices Act ("FDCPA"), reasoning that any such claim is precluded by the Bankruptcy Code's comprehensive claims-allowance procedure. The court further held that the filing of a proof of claim on a stale debt does not merit sanctions under Bankruptcy Rule 9011 where the proof of claim is filed in compliance with the Code. Accordingly, the ...
On August 11, 2015, the Federal Communications Commission (FCC) fined Travel Club Marketing, Inc. and its owner $2.96 million dollars for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, et seq. The TCPA prohibits, amongst other things, the use of an automated telephone dialing system or pre-recorded voice to make telephone calls to a cellular telephone without prior express consent. The Florida based telemarketing firm is alleged to have made 185 such calls to more than 142 cellular telephone numbers, many of which were listed on the National Do ...
In Davidson v. Capital One Bank (USA), N.A., a case closely followed by the financial services industry and handled by Burr & Forman, LLP, the Eleventh Circuit held that an entity collecting a debt that was acquired after default, and which the entity now owns, is not a "debt collector" under the Fair Debt Collection Practices Act ("FDCPA") unless the principal purpose of the entity's business is the collection of debts or the entity regularly collects debts owed to others. In so holding, the Eleventh Circuit broke from the large majority of courts (including the Third, Seventh, and ...
In Caprio v. Healthcare Revenue Recovery Group, LLC, --- F.3d ---, 2013 WL 765169 (3d Cir. Mar. 1, 2013), the U.S. Court of Appeals for the Third Circuit recently held that language in a debt collection letter asking the plaintiff to "please call" if the plaintiff disputed the amount owed violated the debt validation and false representation provisions of the FDCPA. Plaintiff Ray Caprio filed a putative class action against Healthcare Revenue Recovery Group, LLC ("HRRG") alleging violations of § § 1692g and 1692e(10) of the FDCPA based on a collection letter he received that contained ...