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Posts published by “Thomas Dominczyk”

Tom Dominczyk is based in Maurice Wutscher's New Jersey office and supports the firm's matters in its New York and Pennsylvania offices, practicing in the firm's Commercial Litigation, Consumer Credit Litigation and Bankruptcy groups. Tom has successfully represented financial institutions and law firms throughout the country for claims filed under the Fair Debt Collection Practices Act, Fair Credit Reporting Act and various state consumer protection statutes. In addition to his litigation practice, Tom represents national, regional and local creditors in a variety of bankruptcy matters ranging from the defense of adversary actions to complex non-dischargeability litigation and preference defenses. He served as a Judicial Clerk to the Honorable Graham T. Ross, P.J.F.P., Superior Court of New Jersey, Somerset County. For more information, see https://mauricewutscher.com/attorneys/thomas-r-dominczyk/

No FDCPA Violations in Simon After Remand

Two years ago, in Simon v. FIA Card Services, N.A., the Third Circuit held that alleged violations of the FDCPA resulting from conduct in a bankruptcy case were not precluded by the Bankruptcy Code. At issue was whether the defendants engaged in false, misleading or deceptive conduct in connection with their service of a subpoena for a Rule 2004 examination.  The certification of service on the subpoenas indicated service both directly on the plaintiffs and on their attorney whereas they were actually only served on the attorney. In addition, the location provided for the examination was improper under the bankruptcy…

Seventh Circuit Denies Petition in Proof of Claim Case

Like the 80 inches of snow that pummeled Buffalo this week, the crusade against time-barred debt continues to hammer the collection industry.  Today the United States Court of Appeals for the Seventh Circuit denied a petition for leave to file an interlocutory appeal in the matter of Patrick v. PYOD, LLC. Earlier this summer, a judge sitting in the United States District Court for the Southern District of Indiana denied a collector’s motion to dismiss an FDCPA complaint based on the filing of a proof of claim on a debt that was beyond the statute of limitations. Relying on Randolph v.…

Consumer Baits Collector to Violate FDCPA, Files Suit

If I did not read this opinion I never would have believed it. In one of the greatest examples of baiting a collector into a violation of the FDCPA, a plaintiff in Missouri decided he was not going to wait for a collector to call him and instead called the collector himself to induce a 1692c(a)(2) violation. According to the opinion, “In mid-June 2014 plaintiff retained an attorney to represent him regarding his debts, including those which defendants are attempting to collect from him. Shortly after retaining legal counsel plaintiff phoned defendant MRG to ask about the debt and to inform…

Eleventh Circuit Clarifies Prior Express Consent Under TCPA, Reverses Mais

With its decision in Crawford v. LVNV Funding, LLC still leaving a bad taste in the collection industry’s mouth, the Eleventh Circuit has provided some solace to the financial services industry with its decision in Mais v. Gulf Coast Collection Bureau, Inc., No. 13-14008 (11th Cir. Sept. 29, 2014).  The key holding was the reversal of the district court’s interpretation of “prior express consent” under the Telephone Consumer Protection Act. Plaintiff sued the medical service provider and its debt collection agent for making autodialed or prerecorded calls to his cellular telephone in violation of the TCPA.  His wife had given his cellular telephone…

NJ Court Holds No FDCPA Violation for Filing Suit on Time-Barred Debt

Filing a lawsuit to collect a time-barred debt does not violate the Fair Debt Collection Practices Act according to a June 30 decision from a New Jersey state trial court. The decision, Midland Funding v. Thiel, involved a collection action to recover the unpaid balance of a Home Depot credit card. The law firm representing the creditor filed suit under New Jersey’s six-year limitation period for contracts, which has been applied to countless credit card debts. The trial court dismissed the claim reasoning that this particular credit card could only be used to make purchases at Home Depot. Four Year Limitations…

11th Circuit Holds Filing a Proof of Claim on Time-Barred Debt Violates FDCPA

Addressing what it termed “a deluge [that] has swept through U.S. bankruptcy courts of late” the 11th Circuit Court of Appeals in Crawford v. LVNV Funding, LLC  held that filing a proof of claim on time barred debt is conduct that violates the Fair Debt Collection Practices Act (“FDCPA”). Background The last payment on the underlying debt was made in 2001 and subject to Alabama’s three year statute of limitations. The debtor filed for relief under the Bankruptcy Code in 2008 during which the current owner of the debt filed a proof of claim. Neither the debtor nor the Chapter…

Court Finds Plaintiff’s FDCPA Complaint Filed in Bad Faith, Awards Fees

While there are many reported cases discussing attorney fee awards to successful plaintiffs under the Fair Debt Collection Practices Act, fee awards for defendants who had to endure bad faith complaints are few and far between.  Recently, one of these rare opinions surfaced in the Eastern District of Missouri in Nguyen v. Capital One Bank, (USA), N.A., 2014 U.S. Dist. LEXIS 46716 (E.D. Mo. Apr. 4, 2014). The underlying putative class action complaint was filed in state court and removed by the defendants who then filed a motion to dismiss.  The District Court granted the unopposed motion to dismiss and…

Branded Credit Card Time Barred By Sale of Goods Limitations Period

The  New Jersey Appellate Division held in a surprising decision that a retail-branded credit card was time barred by its four year statute of limitations for the sale of goods. Trial Court Applied Six Year Statute A debt buyer filed a complaint in July 2012 to recover a defaulted store-branded credit card. The debtor counterclaimed under the Fair Debt Collection Practices Act arguing that the purchases she made with her card represented the sale of goods and since she defaulted in August of 2006, the debt buyer’s claim was time barred by New Jersey’s Uniform Commercial Code Article 2-725. The trial court…

FCC Says TCPA Clarification Coming Soon

According to a blog post made by Federal Communications Commissioner Michael O’Rielly, immediate changes are needed to the Telephone Consumer Protection Act to address the flood of litigation caused by its own “complex and unclear” rules. Citing changes in business models and methods of communications he notes that the FCC’s rules have become “complex and unclear” and suggests that clarification would benefit all parties impacted by the TCPA.  Another concern voiced by the Commissioner is the fact that TCPA complaints have increased by 30 percent in the past year and that there is a growing backlog of petitions to the FCC…

FTC Obtains Ex Parte Order Shutting Down Debt Collector

The Federal Trade Commission reported yesterday that on Feb. 24, it obtained an ex parte temporary restraining order from a New York federal court freezing the assets of Federal Check Processing, Inc. and related entities.  The TRO also appointed a temporary receiver for the defendants pending a hearing on March 17. According to the FTC’s press release, the defendants used company names suggesting a government affiliation such as Federal Recoveries, LLC, Federal Check Processing, Inc, Federal Processing Services, Inc., Nationwide Check Processing, and State Check Processing, Inc.  In addition to the allegedly deceptive names of the companies, the FTC alleges that the defendants…

Fourth Circuit Holds Consumers May Dispute Debts Orally

The Fourth Circuit has joined the Second and Ninth circuits to hold that the Fair Debt Collection Practices Act does not require consumers to dispute debts in writing.  (Clark v. Absolute Collection Serv., 2014 U.S. App. LEXIS 1939 (4th Cir. Jan. 31, 2014)). In a short per curiam opinion on Jan. 31, the Fourth Circuit adopted the reasoning of the Second and Ninth circuits and held that 15 USC 1692g(a)(3) permits a consumer to dispute the validity of a debt orally based on a plain reading of the statute.  Citing Hooks v. Forman, Hold, Eliades & Ravin, LLC, 717 F.3d…

Trial Court Slams Professional Plaintiff, Awards Defendant Attorney’s Fees

Earlier this month, a Judge in the Eastern District of New York granted summary judgment to a defendant on technical e(11) violations finding that “his grievance is not merely meritless, it is frivolous.”[1]  In his decision, the Judge reiterated an observation that he had made seven years ago describing a rising tide of FDCPA complaints brought by a  “cottage industry” of “professional plaintiffs” who file suits for violations of the FDCPA.[2] In this case, the Plaintiff called the Defendant’s office and heard a recorded message identifying the Defendant as a debt collector and informing the Plaintiff that its communications were attempts…