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Posts tagged as “Eleventh Circuit”

11th Cir. Holds V-Mail Asking Debtor to Call Back is FDCPA ‘Communication,’ But Callers Needn’t Provide Names

The U.S. Court of Appeals for the Eleventh Circuit recently held that a voicemail from a debt collector that merely asks for the debtor to call back constitutes an initial communication under the federal Fair Debt Collection Practices Act (FDCPA) requiring the so-called “mini-Miranda” warning. In so ruling, the Court also held that a debt collector employee does not need to reveal his or her name to provide “meaningful disclosure” of the caller’s identity. A copy of the opinion in Hart v. Credit Control, LLC is available at:  Link to the Opinion. The defendant debt collector left a voicemail for the…

11th Cir. Reverses Limited Atty Fee Award Where Plaintiff Had No Actual Damages But Proved Statutory Violation

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s award of $2,500 in statutory damages to a plaintiff whose private information was improperly viewed by a sheriff’s deputy who had a romantic relationship with the plaintiff’s ex-husband in violation of the federal Driver’s Privacy Protection Act (DPPA), holding that the statute did not provide for cumulative damages of $2,500 per violation. In so ruling, the Court reversed the trial court’s award of only 10 percent of the amount of attorney’s fees requested by the plaintiff’s counsel. The trial court limited the attorney fee award because…

11th Cir. Holds Servicer Did Not Violate RESPA by Omitting Loan Owner’s Phone Number, Damages Allegations Insufficient

In an unpublished ruling, the U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage servicer did not violate the federal Real Estate Settlement Procedures Act or its implementing regulation (at 12 C.F.R. § 1024.36(d)(2)(i)(A)) by failing to provide the loan owner’s phone number in response to a borrower’s request for information (“RFI”). In so ruling, the Court also held that: (1) The borrower’s allegation of having expended “certified postage costs of less than $100 for mailing” was not sufficient to meet the requirement of “actual damages” under RESPA at 12 U.S.C. § 2605; and (2) The…

11th Cir. Confirms Servicer May Designate Address for QWRs

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a summary judgment ruling in favor of a mortgage servicer, holding that the servicer had no duty to respond to a Qualified Written Request (“QWR”) under the federal Real Estate Settlement Procedures Act (RESPA) because the borrower failed to send the QWR to the servicer’s designated address for QWR receipt. A copy of the opinion in Bivens v. Bank of America, NA is available at:  Link to Opinion. A mortgage servicer sent a letter to a borrower advising that the lender transferred the servicing of the borrower’s mortgage loan to…

11th Cir. Holds TCPA Allows Partial Revocation of Consent

The U.S. Court of Appeals for the Eleventh Circuit recently held the Telephone Consumer Protection Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system (“ATDS”), and thereby only receive calls at certain times of the day or on certain days. Accordingly, the Eleventh Circuit reversed the trial court order granting summary judgment in favor of the defendant, and ruled that whether the consumer had partially revoked consent was a question of fact for a jury. A copy of the opinion in Schweitzer v. Comenity Bank is available at:  Link to…

11th Cir. Holds Bankruptcy Chapter 13 to 7 Conversions May Be Dismissed for ‘Abuse’ Under 11 U.S.C. § 707(b)

The U.S. Court of Appeals for the Eleventh Circuit recently held that section 707(b) of the Bankruptcy Code, which allows a bankruptcy court to dismiss a chapter 7 petition if it finds that relief would be an “abuse” as defined in that section, applies to a petition initially filed under chapter 13 and converted to chapter 7. A copy of the opinion in Pollitzer v. Gebhardt is available at:  Link to Opinion. A debtor filed bankruptcy under chapter 13 of the Bankruptcy Code, which allows a debtor to restructure his debts and keep his assets by submitting a plan that provides…

11th Cir. Adopts ‘Claim Splitting’ Doctrine, Upholds Dismissal of Duplicative Litigation

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a complaint alleging violations of the federal Telephone Consumer Protection Act, the federal Fair Debt Collection Practices Act (FDCPA) and its analogue under Florida state law, because the plaintiff previously filed a separate lawsuit against the same defendant alleging violations of the TCPA based on the same conduct. Because the Eleventh Circuit concluded that the claims asserted in the second action were based on the same nucleus of operative facts, the plaintiff was barred from splitting her claims among the lawsuits. A copy of the opinion…

11th Cir. Holds Post-Discharge Monthly Mortgage Statements Not Prohibited

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a mortgage loan borrower’s federal Fair Debt Collection Practices Act and related state law claims because the defendant mortgagee was not a “debt collector” as defined by the FDCPA. In so ruling, the Court also rejected the borrower’s allegations that the monthly statements the mortgagee sent to the borrower after her bankruptcy discharge were impermissible implied assertions of a right to collect against her personally. A copy of the opinion in Helman v. Bank of America is available at: Link to Opinion. The borrower obtained a…

11th Cir. Holds RESPA Claim for Request for Information Violation Failed Under Spokeo

In an unreported ruling, the Eleventh Circuit Court of Appeals recently affirmed the dismissal of a borrower’s federal Real Estate Settlement Procedures Act (RESPA) claim that the mortgage servicer failed to confirm receipt of the plaintiff’s request for information because the servicer’s signed certified mail receipt qualified as confirmation of receipt under the statute. Importantly, the Eleventh Circuit also held that the plaintiff’s RESPA claim for statutory damages failed to allege an injury in fact under Spokeo. A copy of the opinion in Meeks v. Ocwen Loan Servicing LLC is available at: Link to Opinion. A borrower’s attorney sent the…

11th Cir. Holds CAFA’s ‘Local Controversy’ Exception Does Not Preclude Federal-Question Jurisdiction

The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal Class Action Fairness Act’s (CAFA) local-controversy provision, 28 U.S.C. § 1332(d)(4), does not preclude a federal trial court from exercising federal-question jurisdiction. Accordingly, the Eleventh Circuit affirmed the federal trial court’s denial of the plaintiffs’ motion to remand the matter to state court following the defendants’ removal. A copy of the opinion in Blevins v. Aksut is available at:  Link to Opinion. The litigation involved a defendant doctor’s alleged performance of unnecessary heart procedures on the plaintiffs.  Specifically, the plaintiffs alleged that the defendant doctor would…

11th Cir. Holds CAFA Jurisdiction Remains Even When Class Claims Are Dismissed Before Certification

The U.S. Court of Appeals for the Eleventh Circuit recently held that federal courts that have original subject matter jurisdiction over state law claims under the federal Class Action Fairness Act retain that jurisdiction even when the class claims are dismissed before the class is certified.