On May 26, 2022, the Eleventh Circuit issued an opinion reversing the Southern District of Florida’s denial of the appellant’s motion to compel arbitration, therein finding that the district court erred in failing to apply the arbitration agreement’s delegation clause, as agreed to by the parties. The appellate court answered the alliterative tongue-twister of “whether an arbitrator should arbitrate arbitrability” in the affirmative.
In Attix v. Carrington Mortgage Services LLC, –– F.4th ––, 2022 WL 1682237 (11th Cir. May 26, 2022), the plaintiff filed a ...
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 ...
The Eleventh Circuit Court of Appeals has issued its ruling on the motion for rehearing in Hunstein v. Preferred Collection and Management Services, Inc., Case No. 19-14434 but most of the troublesome aspects of the Court’s panel opinion remain. In Hunstein, the Eleventh Circuit reversed the dismissal of a Fair Debt Collection Practices Act (“FDCPA”) lawsuit alleging that the Defendant, a debt collector, had violated third party disclosure prohibitions in the FDCPA by using a mail vendor to mail its dunning letters. The Plaintiff’s theory is that the use of such vendors ...
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 line with the recent trend of courts giving increased scrutiny to standing in consumer finance cases, the Sixth Circuit Court of Appeals dismissed an appeal this week under the Fair Debt Collection Practices Act (“FDCPA”) for lack of Article III standing in Ward v. National Patient Account Services Solutions, Inc., No. 20-5902, 2021 WL 3616067, -- F.4th -- (6th Cir. Aug. 16, 2021). The plaintiff alleged that NPAS, Inc. left him voicemails regarding his medical debt which simply identified itself as “NPAS” rather than “NPAS, Inc.,” which confused him as to the correct ...
On June 14, 2021, the Eleventh Circuit Court of Appeals issued a one-line order stating that the Court was withholding issuance of the mandate in Hunstein v. Preferred Collection and Management Services, Inc. The appeals court’s April 21, 2021, published ruling in Hunstein sent shockwaves through the collection industry when it held that debt collectors who share information about consumers’ debts with collection vendors can violate provisions in the Fair Debt Collection Practices Act (“FDCPA”) aimed at protecting consumer privacy.
The withholding of the mandate was ...
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 February 11, 2020, the United States Circuit Court of Appeal for the Eleventh Circuit issued its opinion in Anderman v. JP Morgan Chase Bank, N.A., Case No. 19-13734 regarding the applicability of the federal Fair Debt Collection Practices Act (“FDCPA”) to certain conduct in judicial foreclosure actions. In Anderman, the plaintiffs alleged on behalf of themselves and a class of similarly situated individuals that JPMorgan Chase and its counsel violated the FDCPA by allegedly seeking to collect a debt against the potential heirs of deceased borrowers by naming them in ...
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 Green v. Specialized Loan Servicing, LLC, 17-15681, the Eleventh Circuit Court of Appeals rejected a consumers contention that his monthly mortgage statement should only seek his last five years of mortgage installments due to Florida’s five-year statute of limitations for mortgage foreclosure. The consumer sued his mortgage servicer under the federal Fair Debt Collection Practices Act (“FDCPA”) 15 USC 1692 alleging his mortgage statements were not only an attempt to collect a debt but also were deceptive because they sought debt that the consumer alleged was ...
In Swann v. Dynamic Recovery Solutions, LLC, No. 4:18-CV-1000-VEH, 2018 WL 6198997 (N.D. Ala. Nov. 28, 2018), the Northern District of Alabama dismissed a putative class action case alleging a letter seeking to collect a time-barred debt violated the Fair Debt Collection Practices Act ("FDCPA").
The plaintiff, Susan Swann ("Plaintiff"), alleged that defendants Dynamic Recovery Services, LLC ("DRS") and Jefferson Capital Systems, LLC ("JCS") violated § 1692e and §1692f of the FDCPA. See generally id. Section 1692e prohibits debt collectors from "'us[ing] any false deceptive ...
For many of the claims asserted under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the "FDCPA"), courts are required to apply the "least sophisticated consumer" standard in evaluating the claim, an "objective" test that assesses the alleged violation from the perspective of the hypothetical "least sophisticated consumer." See Landeros v. Pinnacle Recovery, Inc., 692 F. App'x 608, 612-13 (11th Cir. 2017); see also Leonard v. Zwicker & Assocs., P.C., 713 F. App'x 879, 881-82 (11th Cir. 2017). But as the Eleventh Circuit again made clear earlier this month in Lait ...
In the wake of the D.C. Circuit's ruling in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), which struck down the FCC's interpretations of "automatic telephone dialing system" ("ATDS") under the TCPA as "unreasonably, and impermissibly, expansive," courts are reevaluating what it takes to qualify as an ATDS under the statute. In Maddox v. CBE Group, Inc., No. 1:17-cv-1909-SCJ (N.D. Ga. May 22, 2018), the Northern District of Georgia found the defendant's calling equipment required human intervention to place calls, and thus did not qualify ...
In Midland Funding, LLC v. Johnson, No. 16-348 (May 15, 2017), the U.S. Supreme Court held that a debt collector does not run afoul of the FDCPA by filing a proof of claim in bankruptcy on a stale debt. In its 5-3 decision, the Court sided with the majority of the federal courts of appeals to have considered the issue and reversed the Eleventh Circuit Court of Appeals, which had held that filing a proof of claim on a debt for which the statute of limitations had expired amounted to a "false," "deceptive," "misleading," "unconscionable," and "unfair" means of debt collection.
The case arose ...
The West Virginia Senate Judiciary Committee and the West Virginia Senate recently approved amendments to the West Virginia Consumer Credit and Protection Act ("WVCCPA"), West Virginia Code §§ 46A-1-101 et seq, which was last amended in 2015. While the original versions of the senate bills sought to make the WVCCPA more similar to the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., the committee substitute of S.B. 563 includes only minor amendments. Among other things, the proposed amendments:
- Clarify how notice of attorney representation must ...
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 ...
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. 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 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 ...
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 ...
The Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), continues to have a substantial impact on federal courts, especially with respect to alleged statutory violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the "FDCPA"). In fact, just last week the Third Circuit Court of Appeals relied on the Spokeo decision in reversing a district court's order granting summary judgment in favor of the plaintiff in Bock v. Pressler & Pressler, LLP, No. 15-1056, 2016 WL 4011150 (3rd Cir. July 27, 2016). The plaintiff in Bock had alleged ...
On April 25, the Consumer Financial Protection Bureau ("CFPB") entered into a Consent Order with a New Jersey debt collection law firm, Pressler & Pressler, LLP, and two of its managing partners, Sheldon H. Pressler, and Gerard J. Felt (collectively "the Firm").
The Firm agreed to pay a civil penalty of $1 million dollars in addition to adhering to the provisions contained within the Order. This Order raises questions about whether there is or should be a limit to the federal regulation of attorney practice and litigation strategy. The CFPB appears to be asserting authority ...
In Castellanos v. Midland Funding, LLC, 15-CV-559 (M.D. Fla. Jan. 4, 2016) the United States District Judge John Steele joined with several of his Middle District of Florida colleagues and held that the Bankruptcy Code preempts the FDCPA with respect to filing time-barred proofs of claim. In Crawford v. LVNV Funding, LLC, the Eleventh Circuit held that filing a time-barred proof of claim in bankruptcy court violated the FDCPA. 758 F.3d 1254, 1262 (11th Cir. 2014) cert. denied, 135 S. Ct. 1844 (2015). To the contrary, the Bankruptcy Code permits creditors to file proofs of claim without ...
In Garfield v. Ocwen Loan Servicing, LLC, 15-527 (2d Cir. Jan. 4, 2016), the Second Circuit Court of Appeals examined whether a debtor who has been discharged in a bankruptcy can sue in a district court under the Fair Debt Collection Practices Act ("FDCPA"), as opposed to seeking relief in the bankruptcy court. During her bankruptcy, the debtor paid the arrears on her mortgage, and agreed to make monthly payments to forestall foreclosure. After receiving her discharge, the debtor ceased making payments. Within months her arrearage totaled over six thousand dollars. The lender ...
In Jenkins v. Midland Credit Management, Inc., 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 ...
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 ...
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 ...
Following the Supreme Court's ruling in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010), it is clear that the bona fide error defense set forth in section 1692k(c) of the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692 to 1692p (the "FDCPA"), "does not apply to a violation of the FDCPA resulting from a debt collector's incorrect interpretation of the requirements of th[e FDCPA]." Id. at 604-05. But as the district court recently recognized in Gray v. Suttell & Associates et al., a putative FDCPA class action filed in the Eastern District of ...
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 ...
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 ...
Andrew D. Dunavant, Jr., and Mary Dunavant (the Dunavants) appealed the district court's partial denial of their motion for summary judgment and its grant of the defendant's motion for summary judgment. Dunavant v. Sirote & Permutt, P.C., 2015 WL 525536, 1 (11th Cir. Feb. 9, 2015) (per curiam). The Dunavants allege that the defendant, Sirote & Permutt, P.C. (Sirote), unlawfully published two notices of foreclosure sale for the Dunavants' property after a state court enjoined the foreclosure action. Id. On appeal, the Dunavants first argue that the district court incorrectly ...
Following the Eleventh Circuit's decision last year in Crawford v. LVNV Funding, LLC, the filing of a proof of claim on a time-barred debt in a bankruptcy case pending in the Eleventh Circuit's jurisdiction violates the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692-1692p ("FDCPA"). But as the U.S. Bankruptcy Court for the Northern District of Alabama recently made clear in Gurganus v. Recovery Management Systems Corp. (In re Gurganus), No. 7:14-ap-70054-BGC, 2015 WL 65089 (Bankr. N.D. Ala. Jan. 5, 2015), before debtors start hauling creditors into court for something ...
In Crawford v. LVNV Funding, LLC, the Eleventh Circuit became the first federal circuit court of appeals to hold that filing a proof of claim on a time-barred debt in a bankruptcy case violates the Fair Debt Collection Practices Act ("FDCPA"). See No. 13-12389,__ F.3d __, 2014 WL 3361226 (11th Cir. July 10, 2014). The case arose when LVNV filed a proof of claim in Crawford's bankruptcy case on a debt for which the statute of limitations had expired. In response, Crawford filed an adversary proceeding against LVNV, alleging that LVNV routinely filed proofs of claim on time-barred debts ...
Burr & Forman LLP recently secured an important holding on an issue of first impression regarding the running of the statute of limitations in the FDCPA and FCCPA context. More specifically, in Gregory Crossman v. Asset Acceptance, LLC, 5:14-cv-00115-WTH-PRL, Judge Hodges, sitting in a Middle District of Florida trial court, held that inaction cannot form the basis of a continuing violations theory under the FDCPA or FCCPA, the delayed discovery doctrine does not apply to same, and the recording of a satisfaction of judgment, albeit untimely, renders a § 701.04, Florida Statutes ...
In Payne v. Progressive Financial Services, Inc., No. 13-10381 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit reversed and remanded a Texas district court's dismissal of the plaintiff's suit for lack of subject-matter jurisdiction on the ground that the defendant's unaccepted offer of judgment rendered the plaintiff's claims moot. Plaintiff Nicole Payne alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Texas Debt Collection Practices Act, and the Texas Deceptive Trade Practices Act in her suit against Defendant Progressive ...
In Gruber v. Creditors' Protection Service, Inc., --- F.3d ---, 2014 WL 292086 (7th Cir. 2014), the Seventh Circuit Court of Appeals recently held that letters directing consumers to request verification rather than dispute the debt did not violate the FDCPA. The Seventh Circuit also held that the phrase "[w]e believe you want to pay your just debt" was mere puffery and did not violate the FDCPA. Plaintiffs filed lawsuits against separate defendants alleging that debt collection letters violated the FDCPA because they did not contain adequate notice required by section ...
The United States District Court for the Eastern District of Kentucky recently held that an assignee of a debt may request prejudgment interest in a collection complaint dating from the time the debt was charged off by the original creditor, even where the original creditor had stopped charging interest on the account post charge-off. In Stratton v. Portfolio Recovery Associates, LLC, Case no. 5:13-cv-147-DCR (E.D. Ky. Nov. 26, 2013), the plaintiff filed a putative class action complaint alleging that the debt collector, who had been assigned a debt owed by the plaintiff, violated ...
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 Shadrach Lewis v. Marinosci Law Group, P.C., No. 13-61676-CIV, 2013 WL 5789183 (S.D. Fla. Oct. 29, 2013), the Southern District of Florida denied a defendant's motion to dismiss and rendered an important decision regarding a notice provision contained in a foreclosure proceeding as being a potential violation of the Fair Debt Collection Practices Act ("FDCPA"). Specifically, the plaintiff alleged that the notice provision, as required by the FDCPA, was nevertheless a violation of 15 U.S.C. § 1692e generally as well as § 1692e(10), in particular, as the statement relating to ...
The U.S. District Court for the Eastern District of New York recently held that tax liens, which included municipal water and sewer charges, were not debts under the FDCPA. Additionally, the court found that efforts to foreclose tax liens constituted the enforcement of a security interest, which was not subject to the FDCPA.
In Boyd v. J.E. Robert Co., No. 05-CV-2455, 2013 WL 5436969 (E.D.N.Y. Sept. 27, 2013), plaintiffs filed a putative class action alleging violations of the FDCPA. After the District Court granted defendants' motions for summary judgment, plaintiffs filed a ...
The FTC and CFPB recently filed an amici curae brief supporting the U.S. District Court for the Central District of Illinois's decision denying defendants' motion to dismiss Plaintiff Juanita Delgado's Fair Debt Collection Practices Act ("FDCPA") claims. The brief was filed in connection with the CFPB's amicus program, which was announced in August 2012. In Delgado v. Capital Management Services, LP, Case No. 13-2030 (7th Cir. Aug. 14, 2013), Delgado filed a putative class action against a defendant debt collector and its affiliated companies alleging violations of the FDCPA ...
In Royal Fin. Grp., LLC v. Perkins, ED98991, 2013 WL 4419343 (Mo. Ct. App. Aug. 20, 2013), the Missouri Court of Appeals, Eastern District held, as a matter of first impression in Missouri state court, that a debt collector violates the Fair Debt Collection Practices Act ("FDCPA") by filing a debt collection lawsuit without the intention of ever obtaining evidence to prove the plaintiff's indebtedness. The debt collector in Royal had purchased a portfolio of charged-off debt, for which its assignor had expressly disclaimed any representations or warranties. Under the assignment ...
In Schlegel v. Wells Fargo Bank, N.A., 2013 WL 3336727, (9th Cir. July 3, 2013), the Ninth Circuit held that Wells Fargo did not qualify as a "debt collector" under the Fair Debt Collection Practices Act ("FDCPA"), even though the mortgage debt it sought to collect was in default at the time it was assigned to Wells Fargo. The facts of this case are relatively simple. After the plaintiffs' defaulted loan was assigned to Wells Fargo, the plaintiffs entered into a loan modification agreement with Wells Fargo and proceeded to make payments under the agreement. However, Wells Fargo began ...
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 ...
The Second Circuit Court of Appeal affirmed the dismissal of a Fair Debt Collection Practices Act ("FDCPA") claim brought by a non-debtor under the mootness doctrine after an offer of judgment conveyed orally in open court was rejected. In Doyle v. Midland Credit Management, Inc. ---- F. 3d ---, 2013 WL 3242148 (2d Cir. June 28, 2013), the Second Circuit held that an offer of judgment need not comply with the offer of judgment rule in order to render a case moot. Doyle filed suit against Midland alleging that Midland had harassed him, failed to disclose Midland was a debt collector, and made ...
In matter of first impression, the U.S. Court of Appeals for the Second Circuit recently held that section 1692g(a)(3) does not require a debtor to dispute a debt in writing. The court noted the circuit split on this issue and acknowledged that the Third Circuit has held that a notice requiring the debtor to dispute the debt in writing does not violate the FDCPA. See Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991). Conversely, the Ninth Circuit has held that it does. See Camacho v. Bridgeport Financial, Inc., 430 F.3d 1078 (9th Cir. 2005). In Hooks v. Forman, Holt, Eliades & Ravin, LLC
In a consolidated appeal of two cases from the United States Bankruptcy Court for the Middle District of Alabama, the United States District Court for the Middle District of Alabama held last week that the filing of a proof of claim in a debtor's bankruptcy case does not amount to an FDCPA violation. See Crawford v. LVNV Funding, LLC, Case No. 2:12-cv-701-WKW, Doc. 18 (M.D. Ala. May 9, 2013). The plaintiff-debtors had appealed the dismissal of their adversary complaints which asserted FDCPA claims against creditors who allegedly filed proofs of claim on time-barred debts in their ...
The District Court for the Eastern District of Michigan recently held that a debt collector's accusation during a telephone call that the debtor was "lying" was sufficient to state a claim under the harassment and abuse provisions of the Federal Debt Collection Practices Act. In Summers v. Merchants & Medical Credit Corp., 2013 WL 1507529, the Debtor-Plaintiff alleged that a representative of Defendant Merchants & Medical Credit Corporation accused her of "not being honest" and specifically accused her of "lying" about her job during a conversation in which the agent attempted to ...
In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida certified a Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692e(11) and 1692d(6), class action over the objection of the Defendant. The Defendant objected to the Plaintiff's standing on both Article III constitutional grounds and based upon the alleged lack of statutory standing under the TCPA. The ...
In Joy v. MERSCORP, Inc., No. 5:10-CV-218-FL, 2013 WL 1246856 (E.D.N.C. Mar. 27, 2013), the Eastern District of North Carolina held that a borrower stated a claim for a violation of the FDCPA against a loan servicer in connection with documents filed in foreclosure proceedings. The plaintiff sued several defendants alleging a violation of § 1692e of the FDCPA claiming that the defendants filed false, deceptive, and misleading documents in connection with foreclosure proceedings. Nationwide Trustee Services, Inc. ("Nationwide") moved for a judgment on the pleadings, and Litton ...
The Tenth Circuit recently held that a borrower presented sufficient evidence of actual damages to sustain a FCRA claim against a loan servicing company. The Tenth Circuit also affirmed the district court's decision to dismiss the FCRA claim with respect to a willful violation and the FDCPA claim. In Llewellyn v. Allstate Home Loans, Inc., --- F.3d ---, 2013 WL 1238615 (10th Cir. Mar. 28, 2013), the plaintiff filed suit against a loan servicing company and law firm retained to commence foreclosure proceedings alleging violations of the FDCPA, FCRA, and state law. The district court ...
In O'Bryne v. Portfolio Recovery Associates, Inc., No. cv447-IEG (NLS), 2013 WL 1223590 (S.D. Cal. Mar. 26, 2013), the Southern District of California held that a debt collector did not violate the Fair Debt Collection Practices Act ("FDCPA") by seeking to collect principal, interest, and fees in a collection lawsuit under the common law theories of account stated and assumpsit. The defendant in O'Bryne, a debt collector, filed suit in California state court against the plaintiff-debtor seeking to recover a debt under various common law theories. The debtor subsequently brought ...
In Webb et al. v. Midland Credit Management, Inc. et al., 2013 WL 1285570 (N.D. Ill. Mar. 27, 2013), the Northern District of Illinois held that a plaintiff cannot state a claim under the Fair Debt Collection Practices Act ("FDCPA") merely by alleging that a debt collector sought to collect a greater amount in a settlement letter than it sought to collect in a subsequent collection lawsuit. Rather, a plaintiff must specifically allege a factual basis for why the "inflated" amount is false, deceptive, or misleading. The plaintiffs in Webb brought a class action lawsuit under the FDCPA ...
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 ...
In Echlin v. Columbia Collectors, Inc., NO. C12-5878 RBL, 2013 WL 858206 ( W.D. Wash. Mar. 7, 2013), the Western District of Washington held that an Offer of Judgment of $1,500 plus costs and attorneys' fees mooted the debtor's claim under the Fair Debt Collection Practices Act ("FDCPA"), where the debtor sought statutory damages, actual damages, costs, and attorneys' fees in her complaint yet failed to allege that she in fact suffered actual damages. The plaintiff-debtor in Echlin, who alleged that various notices sent by the defendant-debt collector were defective under the ...
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 ...
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 ...
In Bandy v. Midland Funding, LLC, No. 12-00491-KD-C, 2013 WL 210730 (S.D. Ala. Jan. 18, 2013), the U.S. District Court for the Southern District of Alabama held that filing a collection lawsuit without first obtaining evidence to prove the claims is not a violation of the Fair Debt Collection Practices Act ("FDCPA"). The Bandy defendant, a debt collection agency, filed suit in state court seeking to collect on a debt allegedly owed by the plaintiff. However, the debt collector's complaint allegedly did not contain any allegations supporting the validity of the debt, but only stated ...
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 ...
- Third Circuit Finds Vacatur of Default Judgment Does Not Make Collection Activity Retroactively Unlawful
- Ninth Circuit Finds Reliance on CDIA Guidance Acceptable and Affirms Summary Judgment on FCRA Claim
- Second Circuit Affirms Dismissal of FDCPA and FCRA Claims Finding Collection Efforts Proper Despite Plaintiff’s Dismissal from Foreclosure Action; No Obligation to Report Frivolous Dispute
- Seventh Circuit Affirms Dismissal of FCRA Claim, But Finds Lack of Standing
- Eleventh Circuit Clarifies Tests for Article III Standing, Changes Course on FDCPA and Mailing Vendors
- Standing Room Only – Eighth Circuit Holds that Non-Consumer Attorney Lacks Standing to Bring FDCPA Claim
- The Tenth Circuit Adopts the “Reasonable Consumer” Standard for FDCPA Claims
- Now Say That Five Times Fast! Eleventh Circuit Upholds Arbitration Clause Delegating Adjudication of Threshold Questions of Arbitrability to Arbitrator
- Wisconsin District Court Dismisses FCRA Claim After Bank Mistakenly Accessed Consumer’s Credit Report
- Seventh Circuit Dismisses FDCPA Claim for Lack of Standing
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