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

Sulaiman v. Biehl & Biehl

The gist: Plaintiff in the case is a consumer attorney. The District Court for the Northern District of Illinois refused to apply competent attorney standard and found letter at issue to be not confusing on its face.

Mirshafiei v. Legal Recovery Law Offices, Inc.

The gist: The District Court for the Central District of California found that law firm failed in its due diligence and thus violated the FDCPA when it gave a process server the incorrect address for service.

McCray v. Federal Home Loan Mortgage Corporation

The gist: A law firm who was acting as a substitute trustee for the purposes of a deed of trust was a debt collector. The 4^th Circuit Court of Appeals held that even though the communications were in regard to the enforcement of a security interest, they involved a foreclosure and the payment of money.

Tilatitsky v. Medicredit, Inc.

The gist: The District Court for the Eastern District of Missouri ruled that a collection letter which provided settlement options did not violate the FDCPA. The court ruled that it was speculation that a phrase in the letter that says “please either” would confuse a consumer.

Vayngurt v. Southwest Credit Systems, L.P.

The gist: The District Court for the Eastern District of New York concluded that the parties to the contract – T-Mobile and the plaintiff – intended the collection fee to be owed at the same time as the principal and seeking those fees in a complaint was not a violation of the FDCPA.

Hart v. Credit Control, LLC

The gist: The District Court for the Middle District of Florida held that a voice which identified an agency but not the representative specifically was not a violation of 1692d(6) and that a voicemail was not a communication.

McGinty v. Professional Claims Bureau, Inc.

The gist: The District Court for the Eastern District of New York ruled that the debt collector failed to explicitly identify the current creditor in demand letter and thus violated 1692g.

Vien-Phuong Thi Ho v. Recontrust Company, NA

The gist: The 9^th Circuit Court of Appeals held that a trustee who was the agent for the lender and borrower, and who is authorized to sell property if debtor defaults, is not a debt collector. The court additionally ruled that proceeding to a non-judicial foreclosure is not debt collection.

Sullivan v. Allied Interstate, LLC

The gist: The District Court for the Western District of Pennsylvania ruled the a debt collector was not under duty to disclose that a debt was time-barred, and that using the word “settlement” was not a threat of litigation.

Woerthwein v. Midland Credit Management

The gist: The District Court for the Northern District of Illinois held that the competent attorney standard only applies to a consumer’s attorney and will not be applied if the consumer if an attorney.

Henhaffer v. Simeone & Raynor

The gist: The District Court for New Jersey ruled that a 1692g notice that required a consumer to state the nature of the dispute is not mandated and a violation of the FDCPA.