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Posts published by “Brent Yarborough”

Brent Yarborough practices in Maurice Wutscher's Birmingham office in its Appellate, Commercial Litigation, Consumer Credit Litigation and Regulatory Compliance groups. He has substantial experience representing financial institutions, debt buyers and law firms. He has defended cases involving the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, the Truth In Lending Act, and various state law claims asserted against lenders and their assignees. He has also provided compliance advice on matters related to the FDCPA, UDAAP, and state debt collection and privacy laws. He is a frequent speaker to national audiences and publishes on topics related to consumer financial services regulation and litigation. For many years Brent served on the Executive Board of the Birmingham Bar Association’s Bankruptcy and Commercial Law Section. He also served on the Legislative Task Force of the Creditor Attorney Association of Alabama and is a past president of the Birmingham-Southern College National Alumni Association. He formerly served as Secretary of NARCA – The National Creditors Bar Association, after serving on its Board of Directors for eight years. In addition, he chaired NARCA’s Government and Regulatory Affairs Committee. Yarborough earned his B.A., cum laude, from Birmingham-Southern College and his J.D. from Cornell University, where he was Secretary/Treasurer of the Cornell Law School Moot Court Board. For more information, see https://mauricewutscher.com/attorneys/brent-yarborough/

Court Affirms Dismissal of Crawford Case for FDCPA ‘Time-Barred’ Proof of Claim, Case Was Itself ‘Time-Barred’

On July 10, 2014, the United States Court of Appeals for the Eleventh Circuit issued its opinion in Crawford v. LVNV Funding, LLC. That opinion began by decrying the “deluge” of proofs of claim filed by debt buyers on debts that are unenforceable under state statutes of limitations. It ended by holding that the filing of a “stale” claim in bankruptcy violates the Fair Debt Collection Practices Act. As expected, the Eleventh Circuit’s opinion led to another sort of deluge: numerous FDCPA claims based upon the filing of proofs of claim or other collector conduct in bankruptcy. While courts across…

8th Cir. Holds Time-Barred Proof of Claim Does Not Violate FDCPA, Disagreeing with 11th Cir.

The U.S. Court of Appeals for the Eighth Circuit recently held that “[a]n accurate and complete proof of claim on a time-barred debt is not false, deceptive, misleading, unfair, or unconscionable under the FDCPA.” In arriving at this holding, the Court declined to follow the Eleventh Circuit’s rulings in Crawford and Johnson. A copy of the opinion in Nelson v. Midland Credit Management, Inc. is available at:  Link to Opinion. As you may recall, in Crawford v. LVNV Funding LLC, the Eleventh Circuit held that a debt collector violates the FDCPA when it files a proof of claim in a bankruptcy case…

Ala. App. Court Rejects Debtor’s Attempt to Recast Creditor’s Claims to Make Them Time-Barred

The Court of Civil Appeals of Alabama recently rejected a debtor’s attempt to recast a creditor’s collection claims to make the claims subject to a shorter statute of limitations. In so ruling, the Court held that Alabama’s civil procedure rule as to motion for summary judgment affidavits is satisfied by testimony as to an affiant’s personal knowledge of the information contained in an affidavit. A copy of the opinion in Cook v. Midland Funding, LLC is available at:  Link to Opinion. The debtor opened a credit card account with a bank in 1995. Years later, in 2009, the debtor failed to…

11th Cir. Finds No Irreconcilable Conflict Between FDCPA and Bankruptcy Code

In a much-anticipated follow-up to its 2014 decision in Crawford v. LVNV Funding, LLC, 738 F.3d 1254 (11th Cir. 2014), the U.S. Court of Appeals for the Eleventh Circuit recently held that there is no irreconcilable conflict between the federal Fair Debt Collection Practices Act (FDCPA) and the Bankruptcy Code. In so ruling, the Court reversed the dismissal of two FDCPA cases filed against debt buyers that submitted proofs of claim on debts that were subject to a statute of limitations defense. A copy of the opinion in Johnson v. Midland Funding LLC and Brock v. Resurgent Capital Services, L.P. is available…

DC Fed. Court Holds CFPB Exceeded Its Statutory Authority in Issuing CID

The U.S. District Court for the District of Columbia recently denied a petition by the Consumer Financial Protection Bureau (CFPB) to enforce a Civil Investigative Demand (CID) issued to an accreditor of for-profit colleges, holding that the CFPB did not have statutory authority to issue the CID. A copy of the opinion in Consumer Financial Protection Bureau v. Accrediting Council for Independent Colleges and Schools is available at:  Link to Opinion. The CID issued by the CFPB required the respondent to designate a representative to give oral testimony regarding the respondent’s policies, procedures, and practices relating to the accreditation of seven schools.…

9th Cir. Rejects Challenge to CFPB Enforcement Authority

In a split decision, the U.S. Court of Appeals for the Ninth Circuit recently affirmed, in part, summary judgment in favor of the Consumer Financial Protection Bureau (CFPB) in an enforcement action against a law firm operating as a loan modification company. In so ruling, the Court rejected the attorney loan modification company’s argument that the CFPB was without authority to commence an enforcement action before its director was properly nominated and confirmed. A copy of the opinion in Consumer Fin. Prot. Bureau v. Gordon is available at:  Link to Opinion. The defendant, a licensed California attorney, operated a law…