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Hunstein II Vacated, 11th Circuit to Rehear the FDCPA Letter Vendor Case En Banc

Hunstein v. Preferred Collection and Management Services, Inc.

On their own initiative, the active judges of the U.S. Court of Appeals for the Eleventh Circuit have taken a vote and will hear the appeal, en banc, in Hunstein v. Preferred Collection and Management Services, Inc.

In addition, the Circuit issued an order vacating the Oct. 28 substituted opinion in Hunstein.  As an en banc appeal, the matter is now considered by all of the active judges of the Circuit Court. 

The Oct. 28 opinion found that the debt collector’s use of a letter vendor to print and send a dunning letter to a consumer sufficiently alleged a violation of section 1692c(b) of the federal Fair Debt Collection Practices Act and that the complaint’s allegation that the information was disclosed to employees of the letter vendor was sufficient to allow the plaintiff to proceed in federal court. We discuss that opinion in detail here 

The effect of today’s order is that the Oct. 28 opinion is no longer “law” and all the active judges of the Eleventh Circuit will consider the appeal anew. My partner and Eleventh Circuit practitioner, Brent Yarborough outlined for me the expected path the case will now take.

We expect Chief Judge William H. Pryor, Jr. will appoint three appeal managers. The appeal managers will decide what issues will be considered on rehearing and then prepare a proposed notice to the parties listing the issues to be briefed. Before the notice is issued, the appeal managers circulate it to the en banc court. Other judges can suggest changes, but the appeal managers have significant influence over the scope of the appeal. 

We anticipate one appeal manager will be Judge Kevin C. Newsom, the author of the vacated Oct. 28 opinion. Typically, a dissenter would also be appointed as an appeal manager, in this case that would be Judge Gerald Tjoflat. However, Judge Tjoflat is on senior status and is not an “active judge” of the Circuit. So, we expect another judge may fill his role. Finally, the judge who requested the poll will probably be the third appeal manager.

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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 outside counsel to RMA International, 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. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee. For more information, see https://mauricewutscher.com/attorneys/donald-maurice/

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