Archive for July 2015

Eighth Circuit BAP Rejects Crawford

The United States Bankruptcy Appellate Panel for the Eighth Circuit recently held that filing a proof of claim on a time-barred debt is not, alone, a prohibited debt collection practice under the federal Fair Debt Collection Practices Act. A copy of the opinion is available at: Link to Opinion. Husband and wife debtors filed a

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QR Codes Mean FDCPA Trouble Says Pa. Federal Court

A QR code visible on the face of an envelope embedded with an account number violates the Fair Debt Collection Practices Act, according to a recent decision from the United States District Court for the Middle District of Pennsylvania. A QR or “Quick Response” code is a type of bar code that can contain any

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Florida Court Upholds Successor Servicer’s Use of Prior Servicer’s Records

The Florida Second District Court of Appeal recently affirmed a trial court’s order granting a new trial on the issue of damages in a mortgage foreclosure action, holding that a payment history authenticated by the successor loan servicer was admissible under the business records exception to the hearsay rule because the successor servicer independently verified

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CFPB, DOJ Enter Into Alleged ‘Discretionary Pricing’ Discrimination Consent Order with Auto Finance Company

The Consumer Financial Protection Bureau and Department of Justice recently entered into a Consent Order with an automobile finance company for alleged violations of the federal Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 (ECOA), arising from the auto finance company’s policies and practices allowing car dealer discretion for interest rate markups. A copy of

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CFPB Issues Final Rule Delaying TRID Effective Date to Oct. 3, 2015

The Consumer Financial Protection Bureau has issued its final rule confirming the delay of the effective date of the TILA-RESPA Integrated Disclosures (TRID) rule to Oct. 3, 2015. A copy of the final rule is available at:  Link to Final Rule. The final rule also makes certain technical corrections, including: Amending 12 CFR § 1026.38(i)(8)(ii)

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Movie Promotion Leads to TCPA Horror Story

A recent decision found there’s a difference between advertising and telemarketing messages under the TCPA and that difference may have created a horror story for one movie promoter under the decision from the Eighth Circuit Court of Appeals. “Liberty. This is a public survey call. We may call back later,” was the prerecorded message left twice on the

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NY Court of Appeals Holds Mortgage Loan Repurchase Action Time-Barred

The Court of Appeals of New York recently held that a mortgage loan repurchase action for breach of representations and warranties accrued when the representations and warranties were made, and the obligation to cure and repurchase was not a separate and continuing promise of future performance. A copy of the opinion is available at:  Link

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Sixth Circuit Rejects Borrowers’ Foreclosure Challenges Under Michigan Statute, Alleged HAMP Violations

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s dismissal of borrowers’ state law negligence and constitutional due process allegations arising from the foreclosure and sale of their home under Michigan’s foreclosure-by-advertisement statute. A copy of the opinion is available at: Link to Opinion. The plaintiff borrowers obtained a mortgage

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Ninth Circuit Rejects Claims of Escrow Errors Against Non-Servicer Assignee of Mortgage Loan

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a district court’s dismissal of a borrower’s claims for breach of contract and breach of fiduciary duty relating to alleged failures to properly disburse escrow amounts against a non-servicer assignee of a mortgage loan. In so ruling, the Court confirmed that Washington does not

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Eleventh Circuit Narrowly Construes ‘Communications’ Under FDCPA

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a borrower’s allegations under the federal Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act as to one letter, the purpose of which was to request additional information, but reversed as to two other letters, holding that they

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CFPB Wins Early Round In Battle to Regulate Attorney Professional Conduct

Yesterday I commented on a recent decision from the Eleventh Circuit Court of Appeals, Miljkovic v. Shafritz and Dinkin, P.A. et al., noting it spelled trouble for attorneys engaged in debt collection. Miljkovic incorrectly construes the Fair Debt Collection Practices Act and its legislative history as well as two U.S. Supreme Court cases, to arrive at the mistaken

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Eleventh Circuit’s Mistaken Interpretation Likely to Expose Attorneys to Increased FDCPA Liability

The Eleventh Circuit Court of Appeals recently handed down a decision that went too far in holding that all litigation related activity is subject to the FDCPA. The decision in Miljkovic v. Shafritz & Dinkin, P.A., et al., is available here. In pursuing their client’s judgment, an attorney and law firm obtained a garnishment against Nedzad Miljkovic.

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