FDCPA Case Law Review for September 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 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 September 2016 brought both positive and negative outcomes for the ARM industry

Crail v. I.C. System

The gist: The District Court for the Southern District of Indiana ruled that a Dunning letter that stated interest may accrue is not false and misleading on its face.

Willard v. Bank of America

The gist: The District Court for the Eastern District of Pennsylvania denied plaintiff’s claim that by securitizing the credit card receivables and selling them to Wilmington Trust, Bank of America relinquished its beneficial interest in the account and no debt was owed to Bank of America. Same case as Scott v. BOA, which was dismissed and the dismissal was affirmed by the 3rd Circuit.

Caprel v. Specialized Loan Servicing, Inc.

The gist: The District Court for the Northern District of Illinois ruled that a letter sent to consumer’s attorney did violate the FDCPA. No facts were alleged that the attorney would be otherwise deceived or that the letters were false.

Marquez v. Weinstein, Pinson & Riley, P.S.

The gist: The 7th Circuit reversed lower court and held that false representations can violate the FDCPA even if made in pleadings. The complaint, which contained 1692g language and information regarding when to respond to the summons, was misleading to the least sophisticated consumer.

Daugherty v. Convergent Outsourcing, Inc.

The gist: The 5th Circuit reversed lower court and found letter on time-barred debt which did not threaten suit could mislead an unsophisticated consumer to believe that her time-barred debt is legally enforceable, regardless of whether litigation is threatened.

Linehan v. AllianceOne Receivables Management

The gist: The District Court for the Western District of Washington consolidated cases involving compliance with state law choice of venue but contrary to 1692i of FDCPA. Court, siding with the Suez decision in the 7th Circuit, found that complaints stated a claim for violation of the FDCPA. Arguments of vagueness, separation of powers, and Article III standing were rejected. County Court was joined as a necessary party.

Huling v. Franklin Collection Services

The gist: The District Court for the Northern District of Georgia held that a letter stating that a matter would be “pursued to a conclusion” could be interpreted by the least sophisticated consumer as a threat of legal action.

Lopez v. Law Offices of Faloni & Associates

The gist: The District Court of New Jersey ruled that failure to obtain appropriate license in the state of New Jersey could state a claim under the FDCPA, in that debt collector and attorney misrepresented the legal status of the debt, since there was no right to collect.

Panico v. Portfolio Recovery Associates

The gist: After a debt buyer applied Delaware law to a consumer based on a credit card agreement, The District Court of New Jersey found that because the consumer resided in New Jersey and not in Delaware, Delaware’s tolling provisions applied despite the debt in question being past the statute of limitations. No FDCPA violation.

Jackson v. Abendroth & Russell

The gist: The DIstrict Court for the Southern District of Iowa held that the plaintiff’s failure to plead any concrete injuries when alleging that a validation letter under 1692g and state law disclosures overshadowed his rights.

Kane v. Professional Medical Management

The gist: The District Court of New Jersey ruled that a validation letter asking consumer to contact debt collector does not overshadow disclosures mandated by 1692g and does not give the impression that the only way to stop collection activity is to pay.

Brinkley v. Midland Funding, LLC

The gist: The District Court for the Eastern District of Tennessee denied claims after a plaintiff argued two theories of FDCPA liability - that the certified copy of judgment failed to state that it was from a debt collector, and that the plaintiff was not served with a copy of the notice of executive.

Dennis v. Riezman Berger, P.C.

The gist: The Eastern District of the Missouri Court of Appeals reversed a lower court decision finding that adding post-judgment interest to a consent judgment was not a violation of the FDCPA and Missouri state law and held that post-judgment interest is not an automatic award and must be included in the judgment.

Haney v. Portfolio Recovery et al

The gist: The 8th Circuit found that charge-off does not waive debt buyer’s ability to charge pre-judgment statutory interest. However, the court did uphold an FDCPA claim stated against law firm for charging interest upon interest portion of charge-off balance.

Annunziato v. Collecto, Inc.

The gist: The District Court for the Eastern District of New York ruled that a letter from a debt collector violated the FDCPA when it failed to advise that balance included contingency fees that would be due and owed to an attorney, when those fees had yet to be realized.

McNamee v. Debski & Associates, P.A.

The gist: The District Court for the Middle District of Florida denied plaintiff’s complaint stating a claim against law firm for failing to notify consumer that client had agreed not to pursue post-judgment interest, and then the law firm changed position and sought the same interest subsequently.

Rodriguez v. I.C. Systems

The gist: The District Court for the Eastern District of New York granted summary judgment to debt collector when consumer failed to produce original envelope to show that reference numbers were visible and thus in violation of 1692f(8). Also, even if numbers were visible, evidence shows that reference numbers did not reveal any identifying information.

Dick v. Enhanced Recovery Company

The gist: The District Court for the Eastern District of New York ruled that a collector letter which stated that interest and other charges were $0.00 was not false and misleading the consumer to think there could be those charges in the future.

Tatis v. Allied Interstate

The gist: The District Court for New Jersey ruled that a collection letter that used the word settlement did not have to give a time-barred disclosure.

Ray v. McCullough Payne & Haan

The gist: The 11th Circuit held that FDCPA venue provisions do not apply to post-judgment proceedings.