Showing 6 posts from June 2019.

Minnesota Decision Marks Growing Split Among Federal Circuits Regarding FCRA Liability for Failure to Mark a Tradeline as Disputed

June 27, 2019 by Hinshaw & Culbertson LLP

A recent Minnesota federal court decision (Hrebal v. Nationstar Mortg. LLC) joined a growing number of courts across the country in finding that a creditor's failure to mark a tradeline as disputed can violate the Fair Credit Reporting Act (FCRA) without a consumer having to prove that a reasonable investigation could have uncovered an actual inaccuracy. This trend has created a split between courts in the Fourth, Eighth, and Eleventh Circuits and the First, Fifth, Seventh, and Ninth Circuits. More ›

U.S. Supreme Court Balks on Judicial Deference to FCC in TCPA Case, While Concurrence Led by Justice Kavanaugh Looks to Swing

June 25, 2019 by John P. Ryan

TCPA litigators have been closely monitoring the U.S. Supreme Court's docket waiting for a ruling in the PDR Network case. At stake is what kind of judicial deference should be given to the FCC's interpretation of the Telephone Consumer Protection Act (TCPA). Specifically, the Court was set to decide whether the Hobbs Act required the District Court to accept the FCC's legal interpretation of the TCPA. Numerous decisions at both the District Court and Circuit levels have held that trial courts have no discretion to review an FCC order interpreting the TCPA, meaning that courts must provide these orders complete deference. More ›

Second Circuit Affirms Dismissal of Consumer Plaintiff Avila’s Challenge to the Safe Harbor She Established in Avila I

June 20, 2019 by Fernando C. Rivera-Maissonet

We previously discussed Avila v. Reliant (Avila II) and U.S. District Court Judge Spatt’s dismissal of a consumer’s attempt to sue on the “safe harbor” language she helped establish in Avila v. Riexinger & Associates (Avila I). As predicted, Avila II was appealed to the Second Circuit Court of Appeals. Although the Second Circuit affirmed the dismissal, the Court did not address Judge Spatt’s reasoning for the dismissal. More ›

FCC’s Robocall Ruling Raises Industry Concerns of Erroneous Blocking of Their Lawful Calls

June 12, 2019 by Hinshaw & Culbertson LLP

While most Americans might breathe a sigh of relief upon learning of the U.S. Federal Communications Commission’s (“FCC”) June 6, 2019 5-0 bipartisan vote authorizing phone companies to automatically identify and block unwanted robocalls, shielding us from those annoying voices describing the expiration of our car’s warranty, spoof numbers claiming fake tax bills, and the like, various trade groups have voiced concerns including the American Bankers Association, the American Association of Healthcare Administrative Management, the Credit Union National Association, the National Retail Federation, and the Association of Credit and Collection Professionals. Chief among concerns for these groups is that the call blocking may not distinguish illegal telemarketing and scams from legitimate calls placed once a subscriber consents, as well as a lack of clear redress for any erroneous blocking. More ›

Seventh Circuit Awards Legal Costs and Implements a Major Reduction in Plaintiff's Requested Attorneys' Fees in a FCRA and FDCPA Claim

June 10, 2019 by Jennifer W. Weller

In Paz v. Portfolio Recovery Associates, a debtor sued for violations of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. Within a month of filing suit, the creditor invoked Rule 68 in making a formal offer to settle, and subsequently made two additional Rule 68 offers of judgment. The debtor never responded to these settlement offers, and later rejected a final offer to settle all claims, costs and attorneys' fees for $25,000. At trial, the debtor prevailed on both of his claims, but because the jury determined he had sustained no actual damages, his total recovery was limited to $1,000 in statutory damages. More ›

A Reminder for Borrowers: Post-Discharge Communications by Creditor Must Coerce or Harass in Order to Violate Bankruptcy Law

June 6, 2019 by Samuel C. Bodurtha

In Kirby v. 21 Mortg. Corp., the First Circuit Bankruptcy Appellate Panel examined the Kirbys' claim that the 19 written communications they received from their mortgage holder following their Chapter 7 discharge violated the Bankruptcy Code 524(a)(2)'s injunction. The Kirbys further claimed bankruptcy discharge violations arising from their mortgage holder's delivery of an escrow account disclosure, short sale letter, cash-for-keys letter, and right to cure notice for a total of 26 post-discharge bankruptcy communications. Below, we take a closer look at the decision and its comprehensive review of bankruptcy discharge law along with the process for determining whether a post-discharge correspondence violates the bankruptcy code's injunction. More ›

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