The U.S. Court of Appeals for the Seventh Circuit recently held that “debt collectors cannot immunize themselves from FDCPA liability by blindly copying and pasting the Miller safe harbor language” where that language is inaccurate under the circumstances. Accordingly, the Seventh Circuit reversed the trial court decision granting the debt collector’s motion to dismiss. A copy of the opinion in Boucher v. Finance System of Green Bay, Inc. is available at: Link to Opinion. The plaintiff debtors were Wisconsin residents who incurred and defaulted on debts for medical services. Their creditors sold those debts to the defendant collection agency, which in turn…
Posts tagged as “FDCPA”
A recent decision from a trial court sitting in Illinois calls into question whether debt collectors can rely on a widely used disclosure when collecting debt that may be subject to an expired limitations period. A copy of the opinion in Richardson v. LVNV Funding, LLC is available at: Link to Opinion. In 2012 the Federal Trade Commission and Asset Acceptance, LLC entered into a consent decree to resolve an enforcement action that included allegations that Asset’s debt collection activities violated the federal Fair Debt Collection Practices Act. The consent decree provided that when collecting “time-barred” debt not subject to credit reporting,…
The U.S. Court of Appeals for the Ninth Circuit recently held that the federal Fair Debt Collection Practices Act preempted state judgment execution law insofar as it permitted debt collectors to execute on FDCPA claims. In so ruling, the Court held that debt collectors cannot evade the restrictions of federal law by obtaining a collection judgment against the debtor, and then forcing the debtor’s FDCPA claims to be auctioned, acquiring the claims, and dismissing them. A copy of this opinion Arellano v. Clark Cty. Collection Serv. is available at: Link to Opinion. The debtor incurred a medical debt, and then failed…
The future of federal rules covering debt collection has been thrown into doubt amid the leadership change at the Consumer Financial Protection Bureau. In one of his first actions since taking the helm of the CFPB as acting director, Mick Mulvaney announced a halt on all Bureau rulemaking, reported Reuters. It has been more than four years since the CFPB announced plans to propose the first-ever rules regulating debt collectors subject to the federal Fair Debt Collection Practices Act. Last year it issued an outline of what those rules might look like. The Bureau had indicated earlier this year that…
The Supreme Court of Missouri recently affirmed, in part, a trial court order dismissing two debtors’ petitions attempting to assert violations of the federal Fair Debt Collection Practices Act and the Missouri Merchandising Practices Act against a hospital for failure to state a claim, holding that judgments in non-tort actions include post-judgment interest as a matter of law pursuant to § 408.040.1 even if the judgment does not expressly include post-judgment interest. A copy of the opinion in Dennis v. Riezman Berger, PC is available at: Link to Opinion. A hospital provided medical services to the debtors. After the debtors failed to…
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…
The U.S. District Court for the Eastern District of New York recently granted in part and denied in part a mortgage servicer’s motion to dismiss a borrower’s claim that the servicing transfer notice supposedly violated the federal Fair Debt Collection Practices Act (FDCPA) because it allegedly did not disclose that the debt was increasing due to interest, and that a “door knocker” notice posted on the borrower’s door failed to state that it was from a debt collector. The Court held that under Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2d Cir. 2016), a debt collector must disclose…
In a deeply divided opinion, the U.S. Court of Appeals for the Seventh Circuit, in an en banc review, reversed its previous opinion, Oliva v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 825 F.3d 788, 791 (7th Cir. 2016), holding this time that a debt collector that relied upon circuit precedent interpreting the federal Fair Debt Collection Practices Act (FDCPA) venue provision was not protected by the bona fide error defense. In so ruling, the Court also held that for purposes of compliance with the FDCPA, reliance on court precedent is permitted, but only if there can be no doubt whatsoever as to the accuracy…
A recent decision from the Third Circuit Court of Appeals examines both the provision of consent under the federal Telephone Consumer Protection Act (TCPA) and the bona fide error defense for debt collectors under the federal Fair Debt Collection Practices Act (FDCPA). The decision has dire implications for debt collectors, creditors and any commercial enterprise using telephone technology and QR codes in communicating with customers. A copy of the decision in Daubert v. NRA Group, LLC is available at: Link to Opinion. First up is the TCPA. The trial court ruled that the collection agency violated the TCPA when it used…
The U.S. Court of Appeals for the Fifth Circuit recently affirmed summary judgment under the Fair Debt Collection Practices Act (FDCPA) in favor of the debtor and against a debt collector, where the debt collector failed to mark the debtor’s account as disputed when it credit reported the account. The debt collector admitted that it had not marked the account as disputed because it incorrectly believed that credit reporting a debt as disputed was subject to the requirements of 15 U.S.C. § 1692g, which governs validation of a debt and the treatment of disputed debts. In so ruling, the Fifth…
With its unanimous ruling yesterday that a debt buyer is not a “debt collector” under at least one reading of the federal Fair Debt Collection Practices Act, the U.S. Supreme Court offered some clarity to the financial services industry seeking to assess debt purchaser FDCPA liability. It did, however, refuse to address an alternative interpretation that will likely be used in an attempt to end-run the ruling. The decision in Henson v. Santander Consumer USA Inc. is available at: Link to Opinion. Debt Collector Must Be Collecting for ‘Another’ Santander Consumer USA Inc. acquired defaulted loans from CitiFinancial Auto and then…
A purchaser of a defaulted debt who then seeks to collect the debt for itself is not a “debt collector” subject to the federal Fair Debt Collection Practices Act under an opinion delivered today by the U.S. Supreme Court. The issue before the Court was whether a purchaser of defaulted debt meets the FDCPA’s definition of a “debt collector” as one who “regularly collects or attempts to collect . . . debts owed or due . . . another.” 15 U. S. C. §1692a(6). Here, Santander Consumer USA Inc. acquired defaulted loans from CitiFinancial Auto and then began to collect…