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

Robinson v. I.C. System, Inc.

The gist: A debt settlement company called a debt collector, wanting to get information about a debt. The debt settlement company did not advise the collector of authorization, and asked questions about the debt that was refused by the debt collector. The consumer sued, saying the collector failed to mark the debt as disputed. The District Court for the Eastern District of New York denied summary judgment for the debt collector.

Smith v. Convergent Outsourcing, Inc.

The gist: The District Court for the Eastern District of Michigan held that the use of time-barred debt language saying that a consumer could not be sued was not misleading.

Illobre v. Financial Recovery Services

The gist: A debt collector’s validation notice also included a statement about the consumer’s right to cease communication. The District Court for the Southern District of New York found that neither misleading nor confusing to the consumer.

Ocampo v. Professional Claims Bureau, Inc.

The gist: Bench trial on issue of whether two collection letters were sent over 30 days apart so as to not overshadow. The District Court for the Eastern District of New York found the consumer was not credible, and no evidence was presented that confirmed letters were sent within 30 days or overshadowed one another.

Curry v. AR Resources, Inc.

The gist: The District Court for New Jersey held that sending identical validation notices within 30 days of each other did not mislead the consumer.

Artell v. ARS National Services

The gist: The District Court for the Southern District of Florida found a benign language exception for the use of a bar code visible through an envelope.

Jones v. Hospital of Morristown

The gist: Consumer brought FDCPA claims against hospital and law firm who filed suit in state court and obtained default judgment with attorneys’ fees. The District Court for the Eastern District of Tennessee dismissed claims under Rooker Feldman FDCPA case as an attempt to re-litigate state court action.

Agrelo v. Affinity Management Services, LLC

The gist: The 11^th Circuit held that a fine imposed by a HOA on a resident was a debt for purposes of FDCPA and Florida law, and attempts to collect when resident had counsel was a violation of the FDCPA.

Huebner v. Midland Credit Management

The gist: Counsel for Midland moved for and was granted sanctions and attorneys’ fees by the District Court for the Eastern District of New York against consumer’s attorney for unnecessary and protracted litigation.

Lopera v. Midland Credit Management

The gist: The District Court for the Middle District of Florida found plaintiffs stated a claim under FDCPA when demand letter failed to advise consumer that debt was time-barred and that payment would revive the debt.

Blaha v. First National Collection Bureau, Inc.

The gist: The District Court for New Jersey held that a debt collector was not required to provide disclosure that payment on time-barred debt would restart statute of limitations. However the Court found that the consumer stated a claim that the debt collector failed to disclose the debt was time-barred and not legally enforceable, thus violated 1692e(2)(A).

Wilkins v. Accounts Receivable Resources, Inc.

The gist: The District Court for the Middle District of Florida ruled that a demand letter that referred to current debt and previous debts, but only provided a validation notice for the current debt, was not a FDCPA violation.

Sanchez v. Jackson

The gist: An attorney attempted to argue that an initial letter was sent on behalf of his client and that the FDCPA did not apply to him. The District Court for the Northern District of Illinois denied and found the validation notice was deficient because it failed to include statutory 1692g language.

Paz v. Portfolio Recovery Associates

The gist: The District Court for the Northern District of Illinois ruled that a letter from a debtor’s attorney was enough to put a debt collector on notice that the in question debt was disputed, and the FDCPA was violated when the account was subsequently reported to credit bureaus without noting that the debt was disputed.

Urquiaga v. Financial Business & Consumer Solutions, Inc.

The gist: The District Court for the Southern District of Florida held that use of a fictitious name of a corporation that was not registered in the state was a false misrepresentation, and thus the Plaintiff had stated a claim under the FDCPA.

Ensminger v. Fair Collections & Outsourcing, Inc.

The gist: The District Court for Kansas ruled that a Kansas debt collection letter contained the Massachusetts disclosure on calls to employer but did not explain that it did not apply to Kansas residents.

Chisholm v. AFNI, Inc.

The gist: The District Court for New Jersey ruled that 17 calls by a debt collector that were unanswered, and one call where the recipient hung up, unaccompanied by any harsh or threatening language or back-to-back calls, within a 2-week period were not an FDCPA violation.