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Posts tagged as “FDCPA”

2nd Cir. Holds FDCPA’s SOL Starts When Plaintiff is ‘Injured’

The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of a claim under the federal Fair Debt Collection Practices Act holding that an FDCPA violation occurs, for the purposes of the FDCPA’s one year statute of limitations, when an individual is injured by the alleged unlawful conduct. In so ruling, the Second Circuit clarified that in Benzemann v. Citibank N.A., 806 F.3d 98 (2d Cir. 2015), it did not intend to expand the FDCPA’s statute of limitations by requiring individuals to be injured and receive “notice of the FDCPA violation.” A copy of the opinion in Benzemann…

CFPB Extends Comment Period on Proposed Debt Collection Rules to Sept. 18

The Consumer Financial Protection Bureau has announced it will allow more time for comments on its Notice of Proposed Rulemaking to implement the Fair Debt Collection Practices Act. The CFPB has extended the comment period by 30 days to Sept. 18. Years in the making, if adopted the proposed rules would bring significant changes to the form and manner of consumer debt collection subject to the FDCPA. According to the CFPB, its proposal “would set clear, bright-line limits on the number of calls debt collectors may place to reach consumers on a weekly basis; apply prohibitions on harassment or abuse, false…

Calif. App. Court (1st Dist) Holds Rosenthal Act Allows Class Actions, Cure Provisions to Apply to Debtor Notices

In an unreported opinion, the Court of Appeal for the First District of California recently held that a debt collector that violated the minimum type-size requirement for collection letters under Cal. Civil Code § 1812.701(b) may utilize the procedure for curing violations under California’s Rosenthal Fair Debt Collection Practices Act to correct its violations. However, the Appellate Court reversed the dismissal because the trial court should have allowed the consumer to amend the complaint or locate a suitable class representative after granting summary judgment in favor of the debt collector on her individual claim. In so ruling, the Court also…

7th Cir. Creates Split on Spokeo Standing, Rules in Favor of Defendant in FDCPA Disclosure Case

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s ruling that a debtor lacked Article III standing to sue a debt collector for failing to notify her in its debt validation letter that to trigger the federal Fair Debt Collection Practices Act’s protections she had to communicate a dispute in writing because the only harm she suffered was receiving the incomplete letter. In so ruling, the Seventh Circuit created a circuit split on this issue as in Macy v. GC Services Limited Partnership, 897 F.3d 747 (6th Cir. 2018), where the Sixth Circuit held under…

7th Cir. Holds No FDCPA Violation for Naming Current Creditor as ‘Original Creditor’

The U.S. Court of Appeals for the Seventh Circuit recently affirmed two trial court rulings in favor of a debt collector and against the debtors holding that correspondence which identified “the name of the creditor to whom the debt is owed” as the original creditor instead of the current creditor did not violate the federal Fair Debt Collection Practices Act because it accurately disclosed the only creditor to whom the debtors owed their debt sufficient for the unsophisticated consumer to understand. A copy of the opinion in Smith v. Simm Associates, Inc. is available at:  Link to Opinion. In both cases, a…

7th Cir. Rejects Plaintiff’s Effort to Run Up Attorney’s Fees After Rejecting Reasonable Offer

The U.S. Court of Appeals for the Seventh Circuit recently held that the trial court did not abuse its discretion when it reduced the plaintiff’s counsel’s $187,410 fee claim to $10,875 after the debtor recovered only a $1,000 statutory damages award on his federal Fair Debt Collection Practices Act claim at trial and the debt collector had issued a Rule 68 offer of judgment early in the case that exceeded the amount the debtor recovered. A copy of the opinion in Paz v. Portfolio Recovery Associates, LLC is available at:  Link to Opinion. After a debt collector purchased a debtor’s…

Illinois App. Court (5th Dist) Upholds Dismissal of FDCPA and State Law Claims That 4-Yr UCC SOL Applied to Credit Card Purchases

The Appellate Court of Illinois Fifth District affirmed the dismissal of a borrower’s alleged putative class action alleging that the successor to a credit card issuer violated various state and federal laws when it filed suit to collect the debt past the four-year statute of limitations for the sale of goods under the Illinois version of the UCC (810 ILCS 5/2-725). In so ruling, the Appellate Court held that the issuer properly filed suit within the five-year statute of limitations that applies to credit card agreements under 735 ILCS 5/13-205.  In addition, the Appellate Court ruled that advancing money to pay…

8th Cir. Rejects FDCPA Claim for Unlicensed Collection Letter Signer

The U.S Court of Appeals for the Eighth Circuit recently affirmed dismissal of a consumer’s suit against a debt collector, alleging that its collection letter violated the federal Fair Debt Collection Practices Act. In so ruling, the Court concluded that the debt collector’s use of the term “PROFESSIONAL DEBT COLLECTORS” and the initials of its “doing business as” name would not mislead or deceive an “unsophisticated consumer,” and the letter’s inclusion of a signature of an individual not registered to collect debts in Minnesota was irrelevant and did not violate section 1692f, because the collection company and two other signatories…

CFPB Releases Proposed Rules to Govern Collection Activities Under the FDCPA and Dodd-Frank Act

The Consumer Financial Protection Bureau today released its Notice of Proposed Rulemaking to implement the Fair Debt Collection Practices Act. Years in the making, the proposed rules if adopted would bring significant changes to the form and manner of debt collector communications to consumers, credit reporting and litigation activity. Interested parties will have 90 days from publication in the Federal Register to submit comments to the rules. The rules are available here. The Notice of Proposed Rulemaking covers a wide array of material; we look at a few of the most significant proposals below. Call Frequency Cap The NPRM would…

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…

2nd Cir. Holds FDCPA Does Not Require Itemization of ‘Amount of the Debt’

The U.S. Court of Appeals for the Second Circuit held that a debt collection letter that informs the consumer of the total, present quantity of his or her debt satisfies section 1692g of the federal Fair Debt Collection Practices Act (FDCPA) notwithstanding its failure to inform the consumer of the debt’s constituent components or the precise rates by which it might later increase. The Court further held that such a letter does not violate section 1692e of the FDCPA for failure to inform the consumer that his or her balance might increase due to interest or fees when the letter…

SD Fla. Denies FDCPA Class Certification Due to Individual Issues of ‘Actual Damages’

The U.S. District Court for the Southern District of Florida recently denied a consumer’s motion for class certification in a putative class action against a debt collector. In so ruling, the Court concluded that the plaintiff consumer’s proposed class — which included members who did not make payments to the debt collector while also seeking actual damages as to proposed members who did make payments — presented individual issues concerning causation as to actual payments made in response to the collection letters at issue, and thus failed to overcome the predominance requirement under Fed. R. Civ. P. 23(b)(3). A copy…