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Posts tagged as “11th Circuit”

11th Cir. Holds TCPA Consent Cannot Be Unilaterally Revoked, But Allows Unrelated FCCPA Claim to Proceed

The U.S. Court of Appeals for the Eleventh Circuit recently reversed entry of summary judgment in favor of a satellite television provider against a consumer on claims that it violated the Florida Consumer Collection Practices Act by attempting to collect a debt it knew had been discharged in bankruptcy and directly contacting the plaintiff consumer knowing she was represented by counsel.

11th Cir. Adopts ‘False Name Exception’ to Creditor Liability Under FDCPA

The U.S. Court of Appeals for the Eleventh Circuit recently reversed the dismissal of a pro se consumer’s claims under the federal Fair Credit Reporting Act (FCRA), holding that he stated a plausible claim for relief with his allegations that the defendant creditor obtained his credit report without his consent, and failed to reasonably investigate his credit reporting disputes. However, the Court affirmed the trial court’s dismissal of the consumer’s claim under the federal Fair Debt Collection Practices Act (FDCPA) that the creditor defendant used a “false name” in attempting to collect the debt owed to it.

11th Cir. Reverses Denial of Class Cert in Challenge to Post-Discharge Mortgage Statements

In a putative class action of borrowers who received mortgage statements after a bankruptcy discharge, the U.S. Court of Appeals for the Eleventh Circuit recently reversed a trial court order denying certification for failure to establish predominance. In so ruling, the Eleventh Circuit held that a mortgage servicer’s affirmative defense that it is not liable under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq., because the only remedy for violating a discharge injunction is under the Bankruptcy Code requires no…

11th Cir. Reverses Injunctive Class Certification Because Actual Relief Was Damages

The U.S. Court of Appeals for the Eleventh Circuit recently reversed a trial court’s certification of an injunction class, holding that the injunctive relief sought by the class was improper because the true relief sought was really damages. A copy of the opinion in AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Co. is available at:  Link to Opinion. In 2012, Florida’s law requiring automobile insurance policies to provide personal injury protection (“PIP”) benefits up to $10,000 was amended so that “not every injured motorist will be eligible to access all $10,000 in benefits.” Coverage is capped at $2,500…

11th Cir. Holds Lender’s Forum Selection and Class Action Waiver Clauses Unenforceable

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the denial of a lender’s motions to dismiss and to strike a complaint filed on behalf of a class of borrowers who entered into loan agreements with the lender and its affiliates. In so ruling, the Eleventh Circuit held that the loan agreements’ forum selection clause and class action waivers were unenforceable under Georgia’s Payday Lending Act and Industrial Loan Act, as enforcement would undermine the purpose and spirit of Georgia’s statutory scheme including to preserve class actions as a remedy. A copy of the opinion in Davis v.…

11th Cir. Holds No Violation of Bankruptcy Discharge for ‘Informational Statement’

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the bankruptcy court’s denial of a debtor-borrower’s motion for sanctions, which alleged that her mortgage loan servicer violated her bankruptcy discharge by mailing a communication in a purported attempt to collect upon a discharged debt. In so ruling, the Eleventh Circuit held that the purportedly violative letter, entitled “Informational Statement,” which provided an amount due, due date, and payment instructions, coupled with a disclaimer, did not constitute an unlawful attempt at debt collection, because the servicer had not foreclosed the subject property and the borrower had the option to…

11th Cir. Holds Single Alleged TCPA Violation Not Enough for Standing, Disagrees with 9th Cir.

The U.S. Court of Appeals for the Eleventh Circuit recently held that the receipt of one unwanted text message in alleged violation of the federal Telephone Consumer Protection Act was not enough to allege a concrete harm that meets the injury-in-fact requirement of Article III. In so ruling, the Eleventh Circuit noted that it was not persuaded by the Ninth Circuit’s opinion in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), which held that the receipt of two unsolicited text messages constituted an injury in fact.  Accordingly, the Eleventh Circuit reversed the ruling of the…

11th Cir. Reverses Trial Court’s Use of Fee Multiplier in Fee-Shifting Case

In a class action arising from a data breach at a retailer that resulted in the theft of millions of consumers’ credit card information, the U.S Court of Appeals for the Eleventh Circuit recently held that the fee arrangement included as part of the settlement was a fee-shifting contract and the constructive common fund doctrine did not apply, reversing as an abuse of discretion the trial court’s use of a fee multiplier in a fee-shifting case. A copy of the opinion in Northeastern Engineers Federal Credit Union, et al. v. Home Depot, Inc., et al. is available at:  Link to Opinion.…

11th Cir. Holds Moving to Reset Foreclosure Sale During Loss Mit Did Not Violate RESPA or FDCPA

The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of a borrower’s claim, holding that a mortgage servicer’s motion to reschedule a previously set foreclosure sale after it approved the borrower for a trial loan modification plan did not violate the federal Real Estate Settlement Procedures Act because the motion to reschedule did not move for an order of sale. A copy of the decision in Landau v. RoundPoint Mortgage Servicing Corp. is available at:  Link to Opinion. A borrower defaulted on her mortgage loan and her lender filed a foreclosure action.  The lender obtained final summary judgment in…

11th Cir. Rules in Favor of Mortgage Servicer in FCRA Putative Class Action

In an unpublished ruling, the U.S. Court of Appeals for the Eleventh Circuit recently affirmed dismissal of a borrower’s putative class action suit filed against a mortgagee alleging violations of the Fair Credit Reporting Act for failing to conduct a reasonable investigation into disputed information reported to the credit reporting agencies. In so ruling, the Court concluded that the borrower failed to demonstrate that a reasonable investigation would have uncovered an inaccuracy in certain information provided by the mortgagee to the credit reporting agencies, and the mortgagee had no duty to investigate a separate dispute because the borrower did not…

11th Cir. Splits from Other Circuits on Spokeo Standing

The U.S. Court of Appeals for the Eleventh Circuit sua sponte issued a new opinion to vacate and replace its prior opinion affirming approval of a class action settlement against a retailer for alleged violation of the Fair and Accurate Credit Transactions Act for printing more digits of his credit card number on a receipt than permitted under the act. Departing from contrary opinions by other federal appellate courts, the Eleventh Circuit’s new opinion offers an updated analysis of the plaintiff-appellee consumer’s standing to bring the action under Spokeo, holding that the risk of identity theft the consumer suffered was sufficiently…

Offering to ‘Resolve’ a Time-Barred Debt Can Violate FDCPA Absent Disclosures

The U.S. Court of Appeals for the Eleventh Circuit recently ruled that an offer to  “resolve” a debt without disclosing its time-barred status may be deceptive or misleading under the federal Fair Debt Collection Practices Act (FDCPA) even in the absence of an express threat of litigation. A copy of the opinion in Holzman v. Malcolm S. Gerald & Assocs., Inc. is available at:  Link to Opinion. The letter at issue stated the debt collector wanted to “resolve” the consumer’s account by accepting a reduced amount by a specific date.  The consumer filed a lawsuit alleging the letter was false and misleading in…