The U.S. Court of Appeals for the Eighth Circuit recently held that a consumer waived his right under the federal Fair Debt Collection Practices Act (FDCPA) to cease further communications by calling the debt collector and asking questions about the underlying debt. A copy of the opinion in Scheffler v. Gurstel Chargo, P.A. is available at: Link to Opinion. A law firm obtained a judgment against a debtor in connection with a credit card debt. The debtor was a former debt collector and had litigated a number of FDCPA claims against other debt collectors. The law firm mailed a garnishment notice to the debtor’s credit…
Posts tagged as “Eighth Circuit”
The U.S. Court of Appeals for the Eighth Circuit held that a plaintiff lacked standing to pursue an alleged violation of the Telephone Consumer Protection Act (TCPA) against a defendant that supposedly did not provide a proper opt-out notice in its advertisement faxes because the plaintiff invited and did not rebuke the faxes, and the faxes did not cause the concrete harm required to establish Article III jurisdiction. Separately, the Eighth Circuit reversed the dismissal with prejudice in this removed case, holding that the proper remedy when no case or controversy exists was to return the matter to the state…
The U.S. Court of Appeals for the Eighth Circuit recently held that seeking to collect compound interest in violation of state usury law results in a misrepresentation of the amount of a debt in material violation of the federal Fair Debt Collection Practices Act (FDCPA). In so ruling, the Eighth Circuit reversed and remanded the trial court’s judgment against the consumer, in part, as to his claims for alleged violation of the FDCPA, 15 U.S.C. 1692, et seq., based on a letter that sought to collect compound interest on the subject debt, in violation of Minnesota’s usury statute. A copy…
Answering a certified question from the U.S. Court of Appeals for the Eighth Circuit, the Minnesota Supreme Court recently held that a rule of civil procedure cannot be used to modify deadlines in the state’s foreclosure statute. In so ruling, the Minnesota Supreme Court concluded that to allow a rule of procedure to extend a deadline contained in the Minnesota foreclosure statute would alter the substantive rights of the litigants. At issue in the case was the borrowers’ argument that the loan servicer violated the statutory requirements for handling foreclosures under Minn. Stat. § 582.043. The statute at issue required the borrowers…
The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently applied the “conceivable effect” test in holding that a bankruptcy court lacked jurisdiction over a state law fraud claim raised by a third party regarding the validity of a lender’s lien, and therefore, declined to consider the issue on appeal. In so ruling, the Panel ruled that the state law fraud claim did not invoke “arising under” or “arising in” jurisdiction of the bankruptcy court because the state law fraud claim was not created or determined by the Bankruptcy Code, and could exist outside of bankruptcy. A copy of the…
The U.S. Court of Appeals for the Eighth Circuit recently joined with the Third, Fourth, Sixth, Seventh, and Ninth Circuits in applying a materiality standard to section 1692e of the federal Fair Debt Collection Practices Act (FDCPA). In doing so, the Eighth Circuit affirmed the trial court’s order granting judgment in favor of a debt collector and against a borrower. A copy of the opinion in Hill v. Accounts Receivable Services, LLC is available at: Link to Opinion. On Oct. 30, 2015, a debt collector filed suit in Minnesota state court against a borrower for unpaid medical bills and statutory interest under…
The U.S. Court of Appeals for the Eighth Circuit held that, under the federal Real Estate Settlement Procedures Act, because the borrower did not prove actual damages he also could not prove he was entitled to ‘additional’ statutory damages, and therefore failed to prove an essential element of his RESPA claim. In so ruling, the Eighth Circuit also held that “[a] borrower cannot manufacture a pattern or practice by sending multiple requests in quick succession involving the same subject matter,” and “that two instances of noncompliance are not enough.” Accordingly, the ruling of the trial court granting summary judgment in…
The U.S. Court of Appeals for the Eighth Circuit held that the plaintiff borrowers did not offer sufficient evidence to defeat the rebuttable presumption created by the signed acknowledgement that they received the required number of copies of the federal Truth in Lending Act (TILA) notice of right to cancel disclosures. In so ruling, the Court noted that the plaintiff borrowers did not claim personal knowledge of the number of copies of the disclosure provided at closing, but instead relied on the so-called “envelope theory,” which the Court held was inadmissible hearsay. Accordingly, the ruling of the trial court granting…
The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed a bankruptcy court’s holding that a creditor held an unenforceable lien against a debtor’s real property because the property was owned by the entireties and the lien was thus avoidable under Bankruptcy Code § 522(f)(1). A copy of the opinion in CRP Holdings v. O’Sullivan is available at: Link to Opinion. The debtor and his wife purchased real property in Missouri in 1995. A limited liability company obtained a judgment against the debtor in Missouri and recorded the judgment in the county where the debtor lived. The debtor filed a…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action complaint alleging various causes of action relating to the cybertheft of personally identifiable information, based in part on the plaintiffs failure to adequately allege any damages caused by the data breach or how the defendant breached the terms of its agreement . A copy of the opinion in Kuhns v. Scottrade, Inc. is available at: Link to Opinion. The defendant securities brokerage firm suffered an attack by hackers in which the hackers successfully accessed the firm’s customer database extracting personally identifiable information…
The U.S. Court of Appeals for the Eighth Circuit recently rejected a debtor’s attempt to hold a bank liable for allegedly faulty advice provided in connection with various lending transactions, holding that the debtor could not claim reliance on the bank’s advice when the debtor had an ability to investigate the details of the transaction for itself, and the agreement between parties stated that the debtor was not relying on any of the bank’s representations in entering into the transaction. A copy of the opinion in Bank of America, NA v. JB Hanna, LLC is available at: Link to Opinion. In…
The U.S. Court of Appeal for the Eighth Circuit recently affirmed a bankruptcy court’s rejection of a proof of claim filed by a creditor where the claim was based upon a debt which was time barred by the creditor’s failure to comply with the applicable state law deadline for pursuing a deficiency judgment following a non-judicial foreclosure. A copy of the opinion in Melikian Enterprises, LLLP v. McCormick is available at: Link to Opinion. The underlying debt at issue arose from a commercial loan from the creditor to a company owned by the debtors which was secured by a mortgage against…