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Posts published in “FDCPA”

Fair Debt Collection Practices Act

11th Cir. Upholds Sanctions in FDCPA Lawsuit Only Against Plaintiff’s Counsel

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a district court’s order requiring borrower’s counsel to pay a servicer’s attorney’s fees under Federal Rule of Civil Procedure 11, but reversed that part of the order that imposed sanctions jointly against both borrower and her attorney under the fee-shifting provision of the federal Fair Debt Collection Practices Act, holding only the attorney was liable. A copy of the opinion in Jocelyn Y. Diaz v. The First Marblehead Corporation, et al is available at:  Link to Opinion. A student loan borrower in default sued her loan servicer, alleging that the…

SD Alabama Rules in Favor of Loan Servicer on FDCPA ‘Bona Fide Error’ Defense

The U.S. District Court for the Southern District of Alabama recently granted summary judgment in favor of a mortgage loan servicer and the trustee of a mortgage backed securities trust in a putative class action alleging violations of the federal Fair Debt Collection Practices Act (FDCPA), ruling that the “bona fide error” defense applied to the servicer and that the trustee was not a “debt collector” under the FDCPA. A copy of the opinion in Arnold v. Bayview Loan Servicing, LLC is available at:  Link to Opinion. A borrower defaulted on his mortgage loan and filed a petition under Chapter 7 of…

11th Cir. Upholds Dismissal of FDCPA, FCCPA Complaint for Failure to State Claims

The U.S. Court of Appeals for the Eleventh Circuit recently upheld the district court’s dismissal of a borrower’s amended complaint against a loan servicer alleging claims under the Fair Debt Collection Practices Act (FDCPA)  and the Florida Consumer Collection Practices Act (FCCPA) for leaving a letter in the borrower’s mailbox, posting a letter to his front door, and sending a letter via registered mail offering the borrower various sums of financial assistance if he vacated the property. The Court held that the servicer’s actions did not constitute a demand for payment under the FDCPA and FCCPA and upheld the district…

Arizona Fed. Court Holds No FDCPA Violation for Collecting on Ex-Spouse’s Discharged Debt

The U.S. District Court for the District of Arizona recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act (FDCPA) by attempting to collect on a debt because a debtor’s spouse’s bankruptcy proceedings did not discharge the debt to the extent that the debtor himself may be liable for it. A copy of the opinion in Parker v. First Step Group of Minnesota LLC is available at:  Link to Opinion. The debt at issue arose prior to June 2010, and both the debtor and his wife were liable on the debt.  In June 2010, the…

EDNY Holds Providing Callback Information to Third Party Violated FDCPA

The U.S. District Court for the Eastern District of New York recently granted summary judgment in favor of a debtor in his claim that a debt collector violated the FDCPA when the debt collector, in attempting to reach the debtor by telephone, left a message with a third party providing the debt collector’s callback information. The Court held that because the undisclosed nature of the call may induce the debtor to contact a debt collector when he does not wish to do so, the debt collector must refrain from leaving callback information and attempt the call at a later time…

7th Cir. Rejects FDCPA Allegations Involving Letters Sent to Debtor’s Counsel

The U.S. Court of Appeals for the Seventh Circuit recently upheld the dismissal of allegations that two letters sent to the consumer’s counsel violated the federal Fair Debt Collection Practices Act (FDCPA), reiterating that its “competent attorney” standard applies regardless of whether a statement to the consumer’s counsel is false, misleading or deceptive. A copy of the opinion in Bravo v. Midland Credit Management, Inc. is available at: Link to Opinion. In a prior action, the debtor sued a debt collector for alleged violations of the FDCPA.  The case settled with the collector settling and releasing two of the debtor’s debts.  After settlement,…

Oregon Fed. Court Holds Voicemail Messages on Debtor’s Cell Phone Did Not Violate FDCPA

The U.S. District Court for the District of Oregon recently granted summary judgment in favor of a debt collector, ruling that the collector’s voice mail messages for the debtor did not unlawfully communicate with a third party under the federal Fair Debt Collection Practices Act (FDCPA) and related state law, because the collector could not “reasonably foresee” that debtor’s boyfriend and manager would overhear the voicemail messages left on her cell phone. A copy of the opinion in Peak v. Professional Credit Service is available at:  Link to Opinion. A debtor’s unpaid account was referred to a debt collector. The debtor negotiated a…

Illinois Bankruptcy Court Rejects Crawford, Finds Time-Barred Claims Permissible ­

A recent decision from a United States Bankruptcy Court in the Northern District of Illinois provides a detailed analysis of why proofs of claim on “time-barred” debt do not violate the federal Fair Debt Collection Practices Act (FDCPA) or the Bankruptcy Code. The decision, Glenn v. Cavalry Investments, LLC, is among the growing number of decisions rejecting Crawford v. LVNV from the Eleventh Circuit Court of Appeals. A copy of the opinion is available at: Link to Opinion. The debtor, Darryl Glenn, voluntarily commenced a chapter 13 bankruptcy in August 2014.  The creditor, Cavalry Investments, filed a timely proof of…

MD Fla Holds Bankruptcy Code Precludes FDCPA Claim for Filing POC on Time-Barred Debt

The U.S. District Court for the Middle District of Florida recently dismissed allegations that a debt buyer violated the federal Fair Debt Collection Practices Act by filing a proof of claim on time-barred debt, holding that such claims are precluded by the Bankruptcy Code, and that the FDCPA does not provide a private right of action against debt collectors who file time-barred proofs of claim in bankruptcy court. A copy of the opinion in Castellanos v. Midland Funding LLC is available at:  Link to Opinion. The plaintiff individual owed a credit card debt and filed for bankruptcy protection under Chapter 13 of…

2nd Cir. Holds Debtor Can Bring Post-Discharge FDCPA Claims in District Court

The U.S. Court of Appeals for the Second Circuit recently held that a debtor in bankruptcy can pursue claims under the federal Fair Debt Collection Practices Act in district court for trying to collect a discharged debt, reversing a judgment dismissing the FDCPA claims and requiring the plaintiff seek relief in bankruptcy court. A copy of the opinion in Garfield v. Ocwen Loan Servicing, LLC is available at:  Link to Opinion. The debtor defaulted on her mortgage loan and filed for Chapter 13 bankruptcy, agreeing in her reorganization plan to pay the arrearage on her mortgage in monthly payments.  The debtor received…

6th Cir. Confirms Debt Collection or Foreclosure Not Compulsory Counterclaim in FDCPA Action

The U.S. Court of Appeals for the Sixth Circuit recently confirmed that a servicer and loan owner who did not bring a debt collection or foreclosure action as a counterclaim to a federal Fair Debt Collection Practices Act (FDCPA) lawsuit did not waive their ability to collect on the debt in the future. A copy of the opinion in Bauman v. Bank of America, NA is available at:  Link to Opinion. In August 2004, the borrowers obtained a loan and executed a note to purchase property.  The note was secured by a mortgage on the property.  Later that year, the loan was…

Missouri Federal Court Says ‘Benign’ Language on Envelope Does Not Violate FDCPA

The United States District Court for the Western District of Missouri recently granted a debt collector’s motion for judgment on the pleadings, holding an internal account number displayed on the envelope of a demand letter did not violate the Fair Debt Collection Practices Act (FDCPA) because it did not reveal the plaintiff was a debtor. A copy of the opinion in McShann v. Northland Group, Inc. is available at: Link to Opinion.  In March 2014, the debt collector sent a demand letter regarding a consumer debt owed by the plaintiff. The letter’s envelope had a window in which the plaintiff’s name,…