FDCPA Case Law Review for August 2016, a Busy Month

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 by TransUnion. 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 August 2016 brought both positive and negative outcomes for the ARM industry

Vetrano v. CBE Group, Inc.

The gist: The District Court for the Eastern District of New York held that a validation letter that asks a consumer to call to settle does not overshadow the validation notice, nor is it misleading.

Campbell v. Sansone Law, LLC

The gist: The plaintiff alleges that 1692g notice included a complaint and was a violation of 1692e because it was not necessary. The District Court for the Eastern District of Missouri ruled that it was not necessary to send the notice because it could confuse the consumer.

Datiz v. International Recovery Associates

The gist: The District Court for the Eastern District of New York held that statements on a debt collector’s website are insufficient to warrant standing to an individual consumer to allege FDCPA claims for false and misleading statements.

Layton v. Frontline Asset Strategies, LLC

The gist: In Missouri, post-judgment interest is collectable in a non-tort case even if the judgment did not specifically award such interest. The plaintiffs claim that the defendants violated FDCPA because they sought interest on a default judgment that was not specifically awarded at the time of default. The District Court for the Eastern District of Missouri ruled against the plaintiffs.

Covington v. Franklin Collection Services

The gist: Collection letter advised consumer to contact their attorney if they did not intend to pay balance in full to “REGARDING OUR POTENTIAL REMEDIES, AND YOUR DEFENSES.” The District Court of Kansas found use of those terms did not infer litigation and that a link was too tenuous.

Lyon v. Bergstrom Law, Ltd.

The gist: The District Court for the Eastern District of California held that a voicemail that did not state a message was from a debt collector was a communication and a violation of 1692e(11).

Gomez v. Oxford Law, LLC

The gist: The 3^rd Circuit ruled that a violation of TCPA and the statements contained therein did not threaten litigation and were not a per se violation of the FDCPA.

Davis v. Hollins Law

The gist: Ongoing communications with consumer did not warrant subsequent communications to say that law firm was a debt collector. The 9^th Circuit held that the consumer was well aware and that there was no violation of 1692e(11).

Franklin v. Parking Revenue Recovery Services

The gist: The 7^th Circuit ruled that parking fines are considered debts under the FDCPA because they arise from a consumer transaction.

Owens v. LVNV Funding, LLC

The gist: Filing of an out of stat proof of claim is not an FDCPA violation. The 7^th Circuit held that bankruptcy court anticipates that state claims will be filed and declined to follow the Crawford case from the 11^th Circuit.

Neff v. Schlee & Stillman

The gist: The District Court for the Eastern District of Michigan ruled that by using the word “Assignee” of original creditor, the law firm’s letter did not effectively convey the name of the creditor to whom the debt is owed and is thus in violation of 1692g(a)(2).

Holczler v. National Enterprise Systems

The gist: The District Court for the Eastern District of New York found that there is no reason to believe a consumer would be confused by a letter that identified a creditor as “Gap Visa Card” as opposed to “Gap Visa.”

Jackson v. Blitt & Gaines, P.C.

The gist: The 7^th Circuit held that an affidavit for wage garnishment to be served on employers of consumers was not legal action for purposes of FDCPA liability.

Anenkova v. Van Ru Credit Corporation

The gist: The District Court for the Eastern District of Pennsylvania found a benign language exception for a bar code on an envelope.

Wade v. Account Resolution Corporation

The gist: Consumer alleged that debt collector violated FDCPA when it added pre-judgment interest when entering a default judgment. Debt collector alleged case was time-barred because complaint was brought more than one year after suit was filed. However, the District Court for the Eastern District of Missouri held that because the claim was based upon action taken when default judgment was entered, the claim was timely.

Toohey v. Portfolio Recovery Associates, LLC

The gist: Claim brought against debt buyer in District Court for the Southern District of New York based upon a CFPB consent order alleging PRA did not have sufficient information to proceed in its state court matters was allowed to proceed.

Rosa v. Encore Receivable Management

The gist: Claim that collection letter advised consumer to call if payment was already made did not overshadow existing validation notice. The District Court for New Jersey found the notice did not provide consumer with either/or scenario.

Dittig v. Elevate Recoveries, LLC

The gist: The District Court for the Western District of Pennsylvania held that a debt collector is under no duty to disclose that a debt being beyond the statute of limitations in no threat of suit. The fact that debt collector offered a settlement does not change that fact.

Dubios v. Atlas Acquisitions, LLC

The gist: The 4^th Circuit found that the filing of an out of stat proof of claim is not an FDCPA violation.

Sayles v. Advanced Recovery Systems

The gist: The District Court for the Southern District of Missouri held that even though plaintiff disputed debt outside validation period, the debt collector’s continued failure to mark debt as disputed when reporting to the CRAs was a violation of 1692e(8).

Midland Funding, LLC v. Thiel

The gist: State court in New Jersey affirmed decision that a claim arising from a customer’s use of a store-issued credit card and the use was strictly for the purchase of goods from the issuing retailed and is subject to a 4-year statute of limitations. Further, the filing of a complaint after the statute of limitations is an automatic violation of the FDCPA.

Brooks v. Leon’s Quality Adjusters

The gist: The District Court for the Eastern District of California held that a FDCPA claim against repossession company is denied because they were not found to be a debt collector and were not indirectly collecting debt from the consumer.