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Posts published in “FDCPA”

Fair Debt Collection Practices Act

9th Cir. Holds Discovery Rule Applies in All Types of FDCPA Cases

The U.S. Court of Appeals for the Ninth Circuit recently held that the discovery rule applies equally regardless of the nature of the federal Fair Debt Collection Practices Act (FDCPA) violation alleged by a plaintiff. Therefore, according to the Ninth Circuit, the FDCPA statute of limitations begins to run in all cases when the plaintiff knows or has reason to know of the injury which is the basis of the action. A copy of the opinion in Lyons v. Michael & Associates is available at:  Link to Opinion. The plaintiff consumer filed a lawsuit against the defendant debt collector alleging it…

7th Cir. Holds FDCPA Allows Vicarious Liability; Materiality, Extrinsic Evidence of Confusion Not Required

The U.S. Court of Appeals for the Seventh Circuit recently held that neither extrinsic evidence of confusion, nor materiality, is required for claims under § 1692g(a) of the federal Fair Debt Collection Practices Act (FDCPA). The Court also held that a company that is itself a debt collector may be liable for the violations of the FDCPA by its debt collector agent. A copy of the opinion in Janetos v. Fulton Friedman & Gullace, LLP is available at:  Link to Opinion. The defendant creditor allegedly acquired defaulted consumer debts owned by the plaintiffs and did not dispute that it was a debt…

7th Cir. Holds No FDCPA Violation for Filing Suit Without Intent to Proceed to Trial

The U.S. Court of Appeals for the Seventh Circuit recently held that the federal Fair Debt Collection Practices Act (FDCPA) does not prohibit debt collectors from filing a collection lawsuit without intending to proceed to trial to obtain a judgment. A copy of the opinion in St. John v. Cach, LLC is available at:  Link to Opinion. The defendant debt collectors filed suit in state court to recover on the plaintiffs’ delinquent credit card accounts. When the debtors contested the collection lawsuits, the debt collectors moved to voluntarily dismiss the actions with prejudice. The plaintiff debtors then sued the debt collectors…

11th Cir. Holds Failure to Disclose Disputes Must Be ‘In Writing’ Violates FDCPA

The U.S. Court of Appeals for the Eleventh Circuit recently held that a collection letter sent to the consumer’s attorney is a “communication with a consumer” within the meaning of §1692g of the federal Fair Debt Collection Practices Act (FDCPA). Additionally, the Court held omitting a statement that disputes must be “in writing” in a disclosure under 15 U.S.C. §1692g does not amount to waiver of that requirement by the debt collector, and is instead an omission of a material term in violation of the FDCPA. A copy of the opinion in Connie Bishop v. Ross Earle & Bonan, P.A., et…

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…

How Spokeo May Limit Consumer Financial Services Litigation

Yesterday’s decision from the U.S. Supreme Court in Spokeo v. Robins should bolster the defense of companies subject to several federal consumer protection statutes. The ruling addresses lawsuits that claim an injury created solely by the violation of a federal statute and require the plaintiff to demonstrate not only that the statute was violated, but that the plaintiff herself suffered harm. The opinion does not go as far as many in the consumer financial services industry would have liked (not all injuries must be “tangible”), but it does close the door on civil lawsuits many have faced. The opinion was…

Supreme Court Holds Law Firms’ Use of AG Letterhead Does Not Raise ‘Specter of Consumer Confusion’

In a unanimous decision yesterday, the U.S. Supreme Court held that attorneys retained as independent contractors by the Ohio Attorney General to collect debts owed to the state do not violate the federal Fair Debt Collection Practices Act (FDCPA) when sending collection letters on Attorney General letterhead. In so ruling, the Court noted that the FDCPA “bars debt collectors from deceiving or misleading consumers; it does not protect consumers from fearing the actual consequences of their debts.” Authored by Justice Ginsburg, a copy of the opinion in Sheriff v. Gillie is available here: Link to Opinion. Under Ohio law, debts owed…

8th Cir. Declines to Apply Rooker-Feldman to Preclude FDCPA Action Based on State Court Lawsuit

In a federal Fair Debt Collection Practices Act (FDCPA) lawsuit, the U.S. Court of Appeals for the Eighth Circuit recently held that the Rooker-Feldman doctrine does not apply where the complained of conduct was not the underlying judgment but rather events that occurred during the state court litigation. A copy of the opinion in Hageman v. Barton is available at:  Link to Opinion. The original creditor assigned a debt to a collection agency which in turn hired an attorney to collect the debt from the debtor.  The attorney sent a letter, made a phone call and ultimately filed suit in the…

4th Cir. Confirms Entity Is Not FDCPA ‘Debt Collector’ Merely Because It Purchases Defaulted Debt

The U.S. Court of Appeals for the Fourth Circuit recently held that the fact that a debt is in default at the time it is purchased by a third party does not necessarily make that third party a “debt collector” subject to the federal Fair Debt Collection Practices Act (FDCPA). Instead, the Court held that the respective definitions of “creditor” and “debt collector” under the FDCPA, 15 U.S.C. § 1692 et seq., control whether an entity is a debt collector subject to the FDCPA. A copy of the opinion in Ricky Henson v. Santander Consumer USA, Inc. is available at:  Link…

2nd Cir. Holds Providing Only ‘Current Balance’ on Increasing Debt Violates FDCPA

The U.S. Court of Appeals for the Second Circuit recently vacated the dismissal of federal Fair Debt Collection Practices Act (FDCPA) allegations that a debt collector’s notice stating the “current balance” of the debt without disclosing that the balance may increase over time due to interest and fees was “misleading” within the meaning of Section 1692e. A copy of the opinion in Avila v. Riexinger & Associates, LLC is available at:  Link to Opinion. The defendant debt collector sent collection notices to the plaintiff debtors notifying them that their accounts were placed for collection. The notices stated the “current balance,” but…

Colorado Fed. Court Holds Statements Directed to Non-Debtor Third Parties May Violate FDCPA

The U.S. District Court for the District of Colorado recently denied a debt collector’s motions to dismiss FDCPA allegations that the debt collector’s statements made to the borrower’s attorney during settlement negotiations and statements made to the state court in court filings constitute a violation of the FDCPA, ruling that “none of the provisions implicated in [the borrower’s] claim should be dismissed on the basis that the alleged abusive conduct was communicated to third parties other than the consumer.” A copy of the opinion in Chung v. Lamb is available at: Link to Opinion. The debt collector’s employee contacted the…

3rd Cir. Holds Collateral Repossession Did Not Violate FDCPA

The U.S. Court of Appeals for the Third Circuit rejected allegations that two repossession companies violated the federal Fair Debt Collection Practices Act, holding that the companies had a right to repossess a vehicle as collateral for an unpaid loan. A copy of the opinion in Heiko Goldenstein v. Repossessors Inc. is available at: Link to Opinion. In April 2012, the borrower, a resident of Pennsylvania, obtained an online loan in the amount of $1,000 from a consumer lending company. The borrower pledged his car as collateral for the loan.  Because the consumer lending company was wholly owned by a Native American tribe and…