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Posts published in “FDCPA”

Fair Debt Collection Practices Act

Supreme Court Hears Oral Argument in Midland Funding v. Johnson

The U.S. Supreme Court heard oral argument Tuesday in Midland Funding v. Johnson. A primary issue before the Court is whether the federal Fair Debt Collection Practices Act is violated by the filing in a Chapter 13 bankruptcy case of a proof of claim representing a debt subject to an expired limitations period. The case originated from the Eleventh Circuit Court of Appeals, which along with its earlier decision in Crawford v. LVNV, held the FDCPA is violated in those instances. Every other Circuit Court of Appeals has since found otherwise. The oral argument indicated that at least six justices…

MD Fla. Holds Non-Foreclosure Collection on Time-Barred Debt Does Not Provide Basis for FDCPA or FCCPA Claim

The U.S. District Court for the Middle District of Florida recently granted in part a mortgage loan servicer’s motion to dismiss a consumer borrower’s claims under the federal Fair Debt Collection Practices Act (FDCPA), the Florida Consumer Collection Practices Act (FCCPA), the Real Estate Settlement Procedures Act (RESPA), the federal Fair Credit Reporting Act (FCRA), and the federal Declaratory Judgment Act (DJA), holding: (a) the borrower’s complaint stated claims under the FDCPA and FCCPA because the allegations raised a plausible inference that the servicer knew the borrower was represented by counsel; (b) the borrower’s allegations that the statute of limitations…

FDCPA Claim Fails for Lack of Standing Under Spokeo Holds NJ Federal Court

A New Jersey federal District Court recently granted a debt collector’s motion for summary judgment in a claim arising from service fees where the collection account at issue did not belong to the debtor. A copy of the opinion in Benali v. AFNI is available at:  Link to Opinion. The plaintiff received a dunning letter from a collector allowing him to make payments by phone or online subject to a $4.95 processing fee.  Similar payments made by mail would not be subject to the processing fee.  Although the account at issue did not belong to him, the plaintiff filed suit…

NJ Fed. Court Holds 18 Calls Over Two Weeks – Mostly Unanswered – Did Not Violate FDCPA

The U.S. District Court for the District of New Jersey recently ruled that 18 telephone calls to a consumer over a two-week period – of which 17 were unanswered, and the last where the consumer hung up – did not violate the federal Fair Debt Collection Practices Act (FDCPA). In so ruling, the Court also affirmed that under the federal Telephone Consumer Protection Act (TCPA), persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary. A copy of the opinion…

6th Cir. Rejects Debt Collector’s Efforts to Distinguish Campbell-Ewald Following Offer of Judgment Success in Trial Court

Applying Campbell-Ewald, the U.S. Court of Appeals for the Sixth Circuit revived a consumer plaintiff’s ability to proceed with a putative class action, holding that an unaccepted offer of settlement or judgment generally does not moot a case, even if the offer would fully satisfy the plaintiff’s demands for relief.

4th Cir. Holds Foreclosure is FDCPA ‘Debt Collection,’ Mere Servicer Need Not Provide TILA Notice of Assignment of Loan

The U.S. Court of Appeals for the Fourth Circuit recently confirmed that a law firm and its employees, who pursued foreclosure on behalf of creditors, were acting as “debt collectors” under the federal Fair Debt Collection Practices Act (FDCPA) when they pursued foreclosure proceedings against a borrower. In so ruling, the Court also confirmed that a servicer that does not also own the mortgage loan does not have a duty to provide notice of the sale and assignment of a loan to itself under the federal Truth in Lending Act (TILA) merely because it accepts the assignment of the deed…

Supreme Court Takes On Chapter 13 Bankruptcy Mess Created by FDCPA Ruling

The Supreme Court of the United States has decided it will review the decision of the U.S. Court of Appeals for the Eleventh Circuit in Johnson v. Midland Funding LLC. A link to the docket is available here: Link to Docket.  As you will recall from my previous article, Johnson was the second case decided by the Eleventh Circuit addressing time-barred proofs of claim in Chapter 13 bankruptcy. In the first case, 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 on a…

5th Cir. Confirms Lack of Receipt of Foreclosure Notice Not Fatal, Upholds FDCPA Attorney’s Fees Against Borrowers

The U.S. Court of Appeals for the Fifth Circuit recently confirmed that a claim of lack of receipt of a notice of default and intent to foreclose does not establish any defect in foreclosure proceedings, and that borrowers can be liable for attorney’s fees for bringing an action against a mortgage servicer under the Fair Debt Collection Practices Act. A copy of the opinion in LSR Consulting, LLC v. Wells Fargo Bank, N.A. is available at: Link to Opinion. The borrowers defaulted on loans on two properties.  The mortgagee foreclosed on both, following which the borrowers assigned any alleged claims they had against…

11th Cir. Confirms Third-Party Garnishments Not Subject to FDCPA Venue Provision

The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal Fair Debt Collection Practices Act’s venue provision did not apply to post-judgment action garnishment proceedings. A copy of the opinion in Ray v. McCullough Payne & Haan, LLC is available at: Link to Opinion. A debt collector filed a collection action.  In compliance with the FDCPA’s venue provision, the debt collector brought that action in Fulton County, Georgia, where the debtor resided. After obtaining a judgment against the debtor in that action, the debt collector initiated a garnishment proceeding against the debtor’s bank to collect on the…

8th Cir. Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment

The U.S. Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act for making subsequent telephone calls to a person other than the consumer regarding the location of the debtor, because the debt collector reasonably believed that the person’s initial response was incomplete. In so ruling, the Eighth Circuit held as a matter of law that 14 calls over a period of approximately two months did not rise to the level of harassment prohibited under the FDCPA, at 15 U.S.C. § 1692d(5). A copy of the opinion in Kuntz…

7th Cir. Holds Inclusion of 1692g ‘Debt Validation’ Notice in Complaint Violated FDCPA

The U.S. Court of Appeals for the Seventh Circuit recently reversed the dismissal of a putative class action alleging that the debt collector defendants used misleading language in their state court collection complaints in violation of the federal Fair Debt Collection Practices Act. In so ruling, the Court held that the debt collector’s use of language similar to a notice under 15 U.S.C. § 1692g in its collection complaint was deceptive as a matter of law because it could lead an unsophisticated consumer to believe that the debt would be assumed to be valid by the court if not disputed…

9th Cir. Rules Every Debt Collector – Not Just First to Communicate – Must Comply With FDCPA’s Section 1692g

The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression and the first published circuit court opinion to address the issue, recently held that each and every debt collector — not just the first one to communicate with a debtor — must send the debt validation notice required by the federal Fair Debt Collection Practices Act. A copy of the opinion in Hernandez v. Williams Zinman & Parham is available at:  Link to Opinion. A consumer financed the purchase of her automobile, but stopped making payments on the loan. A debt collection company sent her a…