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Posts tagged as “FDCPA”

Florida Court Reverses Dismissal of FDCPA Allegations in Foreclosure Action

The Appellate Division of the Fifteenth Judicial Circuit of the State of Florida recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim alleging a debt collector’s letter falsely represented a bank was the creditor of a loan. In so ruling, the Appellate Division confirmed that even though a foreclosure action is not necessarily debt collection, the enforcement of a promissory note constitutes debt collection activity even if done in conjunction with the enforcement of a security interest, and even the debt collector stated it was seeking solely to foreclose the creditor’s lien on the real estate,…

Georgia Court Rejects FDCPA Challenge to Alleged Affidavit Misrepresentations as Immaterial

The Court of Appeals of Georgia, Second Division, recently held that a debt collector did not violate the federal Fair Debt Collections Practices Act (FDCPA), holding that even if the alleged misrepresentations in the debt collector’s affidavit were technically false, they were not material and thus failed to state a claim. A copy of the opinion in Summer v. Security Credit Services LLC is available at:  Link to Opinion. In August 2006, a national bank issued a credit card to the debtors, who defaulted by failing to pay the account.  In April 2011, the issuing bank and a debt buying company…

2nd Cir. Holds FDCPA Action Accrues When Injury Occurs, Not Necessarily When Violation Occurs

The U.S. Court of Appeals for the Second Circuit recently reversed dismissal of a federal Fair Debt Collection Practices Act (FDCPA) claim based on the statute of limitations, holding that an FDCPA violation occurs when a bank freezes a debtor’s bank account, not when a debt collector sends a restraining notice to the bank. In so ruling, the Court distinguished the rulings in Maloy v. Phillips, 64 F. 3d 607 (11th Cir. 1995) and Mattson v. U.S. W. Commc’ns, Inc., 967 F. 2d 259 (8th Cir. 1992), which held that an FDCPA violation occurs when the alleged unlawful debt collection…

Oregon Fed. Court Holds Request to ‘Please’ Provide Debt Dispute in Writing Violates FDCPA

The U.S. District Court for the District of Oregon recently held that a notice provided pursuant to 15 U.S.C. 1692g that also contained additional language requesting that a dispute of the debt “please” be sent in writing violated the federal Fair Debt Collection Practices Act (FDCPA). In so ruling, the District Court held that such additional language overshadows or is inconsistent with a consumer’s right to orally dispute the debt within the 30-day period under 15 U.S.C. 1692g, and constitutes a false representation or deceptive means to collect or attempt to collect a debt under the FDCPA. A copy of…

6th Cir. Holds Voicemail to Third Party Did Not Convey Info as to Debt, Did Not Violate FDCPA

The U.S. Court of Appeals for the Sixth Circuit recently affirmed judgment on the pleadings in favor of a debt collector because the voicemail in question, which was left at the plaintiff’s business, was not a “communication” as defined by the federal Fair Debt Collection Practices Act (FDCPA) because it did not convey information about the debt. A copy of the opinion is available at: Link to Opinion. A debt collector sent a letter to the debtor’s business requesting payroll information and later left a voicemail at the debtor’s business that stated the caller’s name, the name of the company…

Florida Court Holds V-Mail Message Asking Return Call Can Be Debt Collection Communication

The U.S. District Court for the Middle District of Florida recently denied a motion to dismiss an amended complaint alleging that a time-share association violated the Florida Consumer Collection Practices Act (FCCPA) and the federal Telephone Consumer Protection Act (TCPA), holding that: A debtor need not use any precise language or magic word to notify a debt collector that the debtor is represented by legal counsel with respect to a debt; A voicemail message merely asking the debtor to return the call to discuss the debt was a debt collection communication; and Declaratory relief may be available under the TCPA.…

11th Circ. Applies Narrow Definition to ‘Debt Collector’ Under FDCPA

The U.S. Court of Appeals for the Eleventh Circuit recently confirmed that an entity is not a “debt collector” under the federal Fair Debt Collection Practices Act, where it does not regularly collect on debts owed to a third party, and debt collection is not the principal purpose of the entity’s business, even when the debt was in default at the time the entity acquired it. A copy of the opinion is available at: Link to Opinion. A lender sued a borrower to collect credit card debt.  The parties entered into a settlement agreement, but the borrower failed to pay…

Eleventh Circuit Narrowly Construes ‘Communications’ Under FDCPA

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a borrower’s allegations under the federal Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act as to one letter, the purpose of which was to request additional information, but reversed as to two other letters, holding that they were sent in connection with the collection of a debt. A copy of the opinion is available at: Link to Opinion. The plaintiff’s mortgage loan went into default and the law firm representing the lender sent the borrower three letters. Two weeks later, the borrower…

Eighth Circuit Confirms Collection Action Not ‘Adverse Action’ Under FCRA

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a debtor’s federal Fair Debt Collection Practices Act (FDCPA), federal Fair Credit Reporting Act (FCRA), and state law claims where a debt collector for a major bank pulled the debtor’s credit report and served a garnishment summons after the debtor allegedly had sent a cease-and-desist letter to the debt collector. In so ruling, the Court confirmed that: (1) a debt collector may pull a debtor’s credit report for collection purposes, and that the debt collector did not need to notify the debtor before reviewing such information;…

Florida Court Denies Motion to Dismiss FCCPA Claim Against Loan Owner Based on Alleged Conduct of Servicer, Foreclosure Counsel

The Seventh Judicial Circuit Court of Florida recently denied a motion to dismiss a borrower’s counterclaims alleging violations of the Florida Consumer Collections Practices Act (FCCPA) against the owner of a mortgage loan, based on alleged communications by the servicer and foreclosure counsel with a debtor supposedly known to be represented by counsel and attempting to collect an allegedly invalid debt. In so ruling, the Court also held: Merely foreclosing on a mortgage, without more, did not constitute “debt collection” under the FDCPA; False statements regarding a debt made to a court instead of directly to the debtor are not…

Ninth Circuit Holds Debt Collector Did Not Violate FDCPA By Charging Pre-Judgment Interest

The U.S. Court of Appeals for the Ninth Circuit recently held that a debt collector’s demand seeking 10 percent interest that was not expressly authorized by the debt agreement did not violate the federal Fair Debt Collection Practices Act or California’s equivalent Rosenthal Act, because the pre-judgment interest was permitted by state law. A copy of the opinion is available at: Link to Opinion. The plaintiff incurred a debt for dental services in 2011. The provider referred the debt to a collection agency, which sent a demand letter in May 2012 seeking the principal balance owed, plus interest at 10…

Third Circuit Holds §1692g(a) Claim must be Brought Within One Year of First Communication

A claim that a debt collector violated §1692g(a) of the Fair Debt Collection Practices Act (“FDCPA”) must be filed within one-year of the first communication, the Third Circuit recently held in Peterson v. Portfolio Recovery Associates, LLC, Case Nos: 10-2824 & 10-4013, 2011 U.S. App. LEXIS 11453 (3d Cir. June 6, 2011). In this decision, the first by a circuit court on the issue, the court specifically rejects the notion that subsequent communications by a debt collector can constitute separate and discreet violations of §1692g(a). Section §1692g(a) provides that a debt collector must provide a consumer with certain written disclosures…