FDCPA Case Law Review for July 2016

insideARM maintains a free FDCPA resources page to provide the ARM community a destination for timely and topical information on the Fair Debt Collection Practices Act (“FDCPA”). This page is generously supported byTransUnion. See the page here or find it in our main navigation bar from any page on insideARM.

The cornerstone of the page is a chart of significant FDCPA cases. Click on the link in the chart for the complete text of the decision. Where insideARM has already published a story on the case, we provide a link. Case information and analysis is provided by Joann Needleman, a Clark Hill attorney and leader of the firm’s Consumer Financial Services Regulatory & Compliance Group.

FDCPA cases in July 2016 brought both positive and negative outcomes for the ARM industry

Myers v. Americollect, Inc.

The gist: A consumer stated a claim against a collection agency and healthcare provider for sending a collection letter to a minor, which falsely stated that the minor would be responsible for a debt. The District Court for the Eastern District of Wisconsin ruled against the defendants’ motion to dismiss the case.

Billups v. Certificate Holders of Popular ABS, Inc.

The gist: The District Court for the Northern District of Illinois denied the claim that continuing to prosecute a foreclosure action is not a discrete act and not a continuing FDCPA violation.

McGuire v. Credit Collection Services Commercial

The gist: The District Court of Hawaii held that attempting to collect debts owed from a car accident is not covered under the FDCPA.

Demarais v. Gurstel Chargo, P.A.

The gist: The District Court of Minnesota ruled that there is no FDCPA violation against a law firm for dismissing an action prior to trial and for inadvertently serving discovery after dismissal.

Johnson-Morris v. Santander Consumer USA, Inc.

The gist: The District Court for the Northern District of Illinois ruled a convenience fee was incidental to a debt and thus subject to the FDCPA.

Nelson v. Midland Credit Management

The gist: The 8^th Circuit held that filing an out of stat proof of claim is not a violation of the FDCPA and that a proof of claim is not litigation.

Wisdom v. Wakefield & Associates

The gist: The District Court of Utah ruled that in order to state a claim under 1692c(b) there must be evidence that a communication occurred with a third party about the debt. Here, a letter that was sent and opened by the debtor’s father is not considered an improper third party communication.

Cohen v. LTD Financial Services, LP

The gist: The District Court of New Jersey held that under state law, a debt collector has not duty to inform a consumer that payment on an out-of-statute debt will restart statute of limitations.

Cohen v. Dynamic Recovery Solutions

The gist: The District Court of New Jersey ruled that a debt collector’s disclosure about the statute of limitations was not deceptive and accurate, and that the debt collector has no duty to inform a consumer that payment is on an out-of-stat debt.

Hernandez v. Williams

The gist: The 9^th Circuit held that each debt collector and any subsequent debt collector must send a validation notice to consumers.

McNorrill v. Asset Acceptance, LLC

The gist: The District Court for the Southern District of Georgia ruled that although claims for the filing of a time-barred proof of claim was denied because it was not filed in a timely fashion, the court found that acceptance of payments from the filing of a time-barred proof of claim can state a claim under the FDCPA.

Layton v. Strategies

The gist: The District Court for the Eastern District of Missouri held that demand for post-judgment interest is permissible in a contract case even if the court did not award the same, and is not an FDCPA violation.

Scribner v. Works & Lentz, Inc.

The gist: The 10^th Circuit ruled that one call to an apartment complex manager was not a communication under the FDCPA.

Tourgeman v. Collins Financial Services

The gist: The District Court for the Southern District of California held that on remand, there is no standing for a consumer who alleges that a law firm did not engage in meaningful review when the consumer never received a letter.

Wood v. Midland Funding Company, LLC

The gist: The District Court for the Eastern District of Michigan sustained objections by the defendant, ruling that the plaintiff’s claims that statements made in motion for alternative service in state court collection actions cannot be challenged in later federal FDCPA actions.

Bock v. Pressler

The gist: The 3^rd Circuit remanded the case back to District Court to determine whether the plaintiff has standing under Spokeo.

In re Robinson

The gist: The Bankruptcy Court for the Western District of Louisiana held that while FDCPA and Bankruptcy do not intersect, and the mere filing of an out

Parham v. Seattle Service Bureau

The gist: The 11^th Circuit ruled that subrogation debt is not a debt covered under the FDCPA.

Langley v. Northstar Location Services

The gist: The District Court for the Southern District of Texas ruled that a disclosure that an agreement or promise to pay a debt could restart the statute of limitations, when no agreement had been made, and stated a claim under the FDCPA.