En Banc Hearing Sought in FDCPA Case, Crawford v. LVNV

Last month’s 11th Circuit Court of Appeals’ decision that allowed a Fair Debt Collection Practices Act claim to be made against a bankruptcy proof of claim filed on out-of-statute debt will get a rehearing if a petition filed by LVNV Funding, LLC is granted.

An Outlier Decision

Crawford caused a stir when it was issued a few weeks ago because it upset a well-settled body of law that prohibited such FDCPA claims. And although en banc requests are often denied, when a decision conflicts with an established body of law there is a better chance it will be granted. That may be what happens here.

Contradictory SignNeed for Consistency in the Law

Crawford highlights the inconsistent treatment of the FDCPA that is applied to the same conduct. Had the same proof of claim been filed in New York or California instead of Alabama, there would be no violation. The “abusive” debt collection practice admonished by the 11th Circuit would be a lawful act anywhere else. Except in a few jurisdictions, the lapse of the statute of limitations does not extinguish the underlying claim. The bankruptcy code contemplates that any entitlement to a sum can be made in a proof of claim. And so, the rest of the nation’s courts would likely find the proof of claim filed in Crawford entirely permissible.

Tough Times in the 11th Circuit

Crawford’s departure from well-settled law could very well be a mistaken interpretation of the Bankruptcy Code and the FDCPA. Courts sometimes make mistakes and do correct them. And it already happened in the 11th Circuit this year. On June 5, it issued its decision in Breslow v. Wells Fargo, a Telephone Consumer Protection Act case examining the legality of certain calls to cell phones. Breslow held that a “called party” under the TCPA refers to either the cell phone subscriber or the cell phone’s “user.” Four days later, it vacated the decision realizing it conflicted with a stricter definition of “called party” it established in Osorio v. State Farm. Osorio, a TCPA decision decided just a few months before Breslow, defined the called party as only the “subscriber” to the cell phone and not persons who also used the cell phone. Maybe Crawford is simply a mistake waiting to be fixed.

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Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as legal counsel to DBA International and as chair of the ABA's Bankruptcy and Debt Collection Subcommittee. He serves on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law .