In Zimmerman v. Zwicker & Associates, -- F.Supp.3d – (D.N.J. 2011), here, Judge Schneider rejected a propose class settlement arising from collection letters that purportedly violated the FDCPA on the basis that the settlement conferred a “phantom benefit” on the class. The parties propose that in exchange for no payment, 800,000 consumers release all claims they could have asserted… Read More
In Walsh v. Hannah & Assoc., here, Judge Burrell of the USDC for the Eastern District of California found that an attorney disclaimer in a collection letter that no attorney had reviewed the file negated a claim that the letter was a 'false representation or implication that . . .any communication was from an attorney" under 15 U.S.C. 1692(e)(5). The District… Read More
In Owen v. I.C. System, Inc. --- F.3d ----, 2011 WL 43525 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit gave guidance in the post-Jerman world on the application of the bona-fide error defense. The Court explained that a ‘legal error’ under Jerman actually requires some exercise of legal judgment, explaining: There is no evidence, nor does… Read More
In Kelemen v. Professional Collection Systems, 2011 WL 31396 (M.D.Fla.), Judge Antoon ruled on what constitutes ‘obscene’ or ‘profane’ under the FDCPA 's section 1692d(2) (violation of the FDCPA for a debt collector to use “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.”). Harkening back to Justice Stewart’s concurrence in… Read More
In the context of debt collection, non-disclosure, blocking, or misrepresentation through telephone caller identification equipment has received attention from the FTC and courts. For example, one FTC complaint pleaded: 19. In numerous instances, including in connection with newly-acquired loans, [collector] has made collection calls to borrowers repeatedly and with excessive frequency under the circumstances. In addition, in numerous instances, [collector]… Read More
What is the frequency with which a creditor can attempt to reach, or actually communicate with, a debtor in connection with the collection of a consumer obligation? The FDCPA established no statutory safe-harbor minimum or maximum call frequency; Congress specifically declined to issue bright line rules. Recent jurisprudence has moved away from a numbers-based approach to examine the call frequency… Read More
In Kropf v. TCA, Inc., --- F.Supp.2d ----, 2010 WL 4722282 (E.D.Mich. 2010), Judge Lawson addressed whether a Plaintiff, who had filed suit against a debt collector and its president alleging violations of the FDCPA, should prevail on an FRCP 12(b)(6) motion as to debt collector’s counterclaim for attorney's fees and costs. Judge Lawson noted that the FDCPA provides that,… Read More
In Brown v. Hosto & Buchan, PLLC (2010 Wl 4352932 (W.D.Tn. 2010), Judge Mays framed the issue on a Motion to Dismiss as whether "a debt collector calling a debtor's telephone seventeen times in one month and impermissibly calling a cellular telephone at least once plausibly violates section 1692d(5)". The Court found that Plaintiff stated a claim, explaining that "the… Read More
In Jiminez v. Accounts Receivable Management, Inc., Judge Wu relied on the Arteaga decision, and granted summary judgment for a debt collector on Plaintiff's FDCPA claim, which arged that 69 calls in a 115 day period constituted harassment. A copy of Judge Wu's order can be found here. Read More
In Marseglia v. JP Morgan Chase Bank, --- F.Supp.2d ----, 2010 WL 4595549 (S.D.Cal. 2010), Judge Houston put to rest questions about the common law torts of invasion of privacy and “tort-in-se”, as well as the question regarding whether the Rosenthal Act provides multiple penalties for debt collection torts. As to the invasion of privacy claim deriving from purportedly… Read More
In Shami v. National Enterprise Systems, 2010 WL 3824151 (E.D.N.Y. 2010), Judge Mauskopf concluded that a debt collector’s addition of an optional fee for payment by telephone potentially violated the FDCPA. The letter stated, in part: You can now pay by automated phone system ... or on the internet. Transaction fees will be charged if you use the automated… Read More
In Sclafani v. BC Services, here, Judge Huck held refused to allow an FDCPA harassment claim by a non-debtor to proceed against a debt collection agency. As to the mini-Miranda requirement, Judge Huck explained: To allow a person who knows that he does not owe a debt, and does not even know the debtor, to bring suit as a… Read More
In Owings v. Hunt & Henriques, 2010 WL 3489342 (S.D.Cal. 2010), Judge Lorenz found that a debt collector violated the Rosenthal Act in the collection of a debt from a National Guardsman called into military service. The definition of “debt collector” under California Civil Code Section 1788.2(c) expressly excludes “an attorney or counselor at law.” FN2 A creditor's counsel… Read More
In Edeh v. Midland Credit Management, Inc. (D. Minn. 2010) , Judge Schiltz found that a debt collector does not violate the FDCPA by reporting an account to the Credit Reporting Agencies after a debtor demands validation without first validating the debt, explaining The Court rejects Edeh’s argument that a debt collector who, before verifying a disputed debt to a consumer,… Read More
The Federal Trade Commission requests public comment on a proposed statement of enforcement policy regarding communications in connection with collection of a decedent's debts. here The statement addresses three issues pertaining to debt collectors who attempt to collect on the debts of deceased debtors. First, the proposed statement announces that the FTC will not bring enforcement actions for violations of Section… Read More
On District Court in North Carolina says that it does. In Racick v. Dominion Law Associates, --- F.Supp.2d ----, 2010 WL 3928702 (E.D.N.C.), Judge Fox applied the Twombly/Iqbal pleadings standards to affirmative defenses set forth by a debt collector in an FDCPA case, and set forth a primer on the split of authority amongst the district courts on the subject. … Read More
In Simmons v. Roundup Funding, LLC, --- F.3d ----, 2010 WL 3859609 (2d Cir. 2010), the Court of Appeals for the Second Circuit found that the bankruptcy code, not the FDCPA, provides the exclusive remedy for fraudulent or defective proofs of claim. Bankruptcy provides remedies for wrongfully filed proofs of claim. “It is beyond cavil that past bankruptcy practice,… Read More
In Sohns v. Bramacint, L.L.C., Judge Ericksen held that spoofing a caller identification identity to falsely represent the source of the call violates the FDCPA. Judge Ericksen explained: In Knoll, the plaintiff claimed that the defendant debt collector had violated §§ 1692d-1692f by “transmitting the false name of ‘Jennifer Smith’ via a caller identification device to consumers to lure them… Read More
Sen. Franken just introduced the "End Debt Collector Abuse Act of 2010", a copy of which is here. As a general proposition, the bill would (1) prohibit a request by a debt collector to have a warrant issued for the rest of any debtor, (2) add new debt validation notice requirements, (3) add new validation requirements in response to a… Read More
In McNall v. Credit Bureau of Josephine County, Inc., 2010 WL 3306899 (D.Or.) Judge Clarke affirmed that 15 U.S.C. § 1692e(8) requires a sequence before credit reporting obligations arise, but nevertheless granted summary judgment to a plaintiff against a debt collector, explaining: In this case, as shown in the pleadings, Defendant CBJC made a conscious decision not to report… Read More
