In Covert v. LVNV Funding, LLC, --- F.3d ----, 2015 WL 877133 (4th Cir. 2015), the Court of Appeals for the Fourth Circuit held that a debtor could not bring FDCPA claims against his former creditor for filing improper proofs of claim in the bankruptcy court because the closure of the debtor’s Chapter 13 case terminated all of his rights.… Read More
In Alvarado v. Credit Protection Association, L.P., 2015 WL 859109 (M.D.Fla. 2015), Judge Covington rejected the argument made by a TCPA defendant that a “Notice of Representation” from Plaintiff’s counsel was inadmissible as a confidential settlement communication because the letter was relevant to cease-and-desist under the FDCPA and revocation of consent under the TCPA. Although the September Letter contains language… Read More
In Davis v. CACH, LLC, 2015 WL 913392 (N.D.Cal. 2015), Judge Freeman referred an FDCPA class action to arbitration, finding that the claim was within the scope of the Arbitration, that Arbitration was not inconsistent with the enforcement mechanisms of the FDCPA, and that the Defendant had not waived arbitration by filing a collection action in state court. Judge Freeman… Read More
In James v. Portfolio Recovery Associates, LLC, 2015 WL 720195 (N.D.Cal. 2015), Judge Whyte found that a debt collector sued in an FDCPA class action could enforce the arbitration clause to send the case to arbitration despite the fact that the debt collector already had sued the the debtor in state court on the debt. James brought this class action… Read More
In Roundtree v. Bush Ross, P.A., --- F.R.D. ----, 2014 WL 6969570 (M.D.Fla. 2015), Judge Whittemore found that an FDCPA class action could still be certified despite questions of whether the obligation was consumer or commercial merely by excluding commercial debts from the class definition. The case arose from a purported “overshadowing” collection letter sent to collect delinquent condominium association… Read More
In Slaughter v. LVNV Funding, LLC, 2015 WL 627954 (N.D.Ala. 2015), Judge Bowdre found that an FDCPA claim arising from the defendant’s filing Proofs of Claim on expired debt remained a “core” proceding under Crawford and the reference to the bankruptcy court should not be withdrawn Given the court's determination that the FDCPA claim is inextricably related to the bankruptcy… Read More
In Vantu v. Echo Recovery, L.L.C., --- F.Supp.3d ----, 2015 WL 571102 (N.D.Ohio 2015), Judge Carr found a repossession loses its exemption under the FDCPA when it violates state law. In any event, the fact that Echo's principal business is not debt collection would not save it from liability under the FDCPA. That is so, because Vantu has plausibly alleged Echo is… Read More
In Sykes v. Mel S. Harris and Associates LLC, --- F.3d ----, 2015 WL 525904 (2d Cir. 2015), the Court of Appeals for the Second Circuit certified a class against a debt collector who purported to operate a mill that resulted in illegal default judgments in New York City. These default judgments, in the words of plaintiffs, are the result… Read More
In Bentkowsky v. Benchmark Recovery, Inc, 2015 WL 502948 (N.D.Cal. 2015), Judge Chhabria addressed whether an intent element is required for imposition of a statutory penalty under the Rosenthal Act versus the FDCPA’s “strict” liability provision. The defendants also contend that the Court lacked authority to award $1,000 more in damages, for the same violation, under section 1788.17. On further… Read More
In Blandina v. Midland Funding, here, Judge Quinones Alejandro held that the $500,000 statutory class action penalty under the FDCPA applies "per lawsuit" and not "per defendant". While the Third Circuit has not addressed directly whether the FDCPA statutory limit for class actions provides a maximum amount of recovery per action as opposed to per defendant, the Third Circuit, along… Read More
In Kielty v. Midland Credit Management, Inc., 2015 WL 400584 (S.D.Cal. 2015), Judge Bashant held that a debt collector stating that payment could help repair the debtor’s credit did not trigger the Credit Repair Organizations Act. Unlike FreeScore, Midland does not offer any service for the purpose of providing assistance or advice to improve consumers' credit record in return for… Read More
In Zarichny v. Complete Payment Recovery Services, Inc., --- F.Supp.3d ----, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible "fail-safe" class. Because plaintiff's class definitions create impermissible fail-safe classes, we need not consider defendants' second ground for striking her class allegations—that plaintiff is not an adequate class representative because… Read More
In Buchanan v. Northland Group, Inc.,--- F.3d ----, 2015 WL 149528 (6th Cir. 2015), the Court of Appeals for the 6th Circuit found a debt-buyer's collection deceptive because it did not disclose that the statute of limitations on the debt had run and, if the debtor made a partial payment, it would commence a new statute of limitations. The “settlement offer”… Read More
In Powers v. Credit Management Services, Inc., --- F.3d ----, 2015 WL 160285 (8th Cir. 2015), the Court of Appeals for the 8th Circuit reversed certification of an FDCPA class action because it was not the superior means of adjudicating the claims. The Court of Appeals, Loken, Circuit Judge, held that: (1) consumers' claim that debt collector's standard collection complaints improperly… Read More
In Johns v. Wells Fargo Bank, N.A., 2015 WL 143753 (S.D.Ala. 2015), Judge DuBose found that a mortgage servicer who acquired defaulted debt had to comply with the FDCPA's Mini-Miranda and debt validation requirements. In this case, the Johns allege that servicing of their loan was transferred to the defendant on or about February 16, 2007—while their bankruptcy petition was pending—at a… Read More
In Kalkstein v. Collecto, Inc., --- F.R.D. ----, 2015 WL 59246 (E.D.N.Y. 2015), Judge Spatt found that the fact that a putative class member would receive less in a class settlement than if the class member sued individually did not defeat class certification. The superiority element of Rule 23(b)(3) requires the court to examine whether a class action is superior… Read More
In Gomez v. Oxford Law, 2015 WL 58766 (M.D.Pa. 2015), Judge Munley held that conflicting language in the TCPA and FDCPA as to when, during a voicemail message, the caller must identify itself can not be exploited to state a claim under the FDCPA. Plaintiff contends section 1692e(5) prohibits two distinct types of conduct: (1) threats to take action that… Read More
In Lopez v. Mid–America Accounts Control Bureau, 2014 WL 6908140 (W.D.Mo. 2014), the District Court granted summary judgment to an FDCPA defendant whose voicemail message to the debtor did not identify the call as being from a debt collector. Plaintiff claims Defendant's single voicemail on May 10, 2013, violated the FDCPA because the caller did not identify herself as a debt collector.… Read More
In Grandidier v. Quantum3 Group, LLC, 2014 WL 6908482 (S.D.Ind. 2014), Judge Young found that the FDCPA prohibits filing proofs of claim in bankruptcy court on debts that would be barred by the statute of limitations. The Eleventh Circuit recently decided a case nearly identical to the one before the court. See Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.2014).… Read More
In Harold v. Steel,--- F.3d ----, 2014 WL 6981364 (7th Cir. 2014), the Court of Appeals for the Seventh Circuit affirmed dismissal of an FDCPA suit based on the Rooker-Feldman doctrine. The facts were as follows: A small claims court in Marion County, Indiana, entered a judgment against Kevin Harold for a little more than $1,000. He did not pay, even though… Read More
