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Franz Kafka, Sisyphus, and Foreclosures: Bank of America Fined $45 Million by Bankruptcy Court For Violation of Automatic Stay

"Franz Kafka lives. This automatic stay violation case reveals that he works at Bank of America." Thus begins an opinion stretching over 100 pages in length in which United States Bankruptcy Judge Christopher Klein fined Bank of America over $45 million for what he found to be an egregious violation of the automatic bankruptcy stay.

According to the order, the Sundquists, at the behest of advice given them by Bank of America, defaulted on their real property loan in 2009 so that they could be considered for a loan modification. The court found that this was followed by a "'multi-year 'dual tracking" game of cat-and-mouse" by Bank of America, which included repeated requests for information which had grown stale and incomprehensible denials of applications. Most central to the court's holding was that, although the Sundquists filed a Chapter 13 bankruptcy petition in June 2010, Bank of America proceeded with a foreclosure sale even though it had notice of the Sundquists' bankruptcy case. Clearly meaning to send a signal which would be heard in the bank's highest offices (in addition to Kafka, the opinion also references the myth of Sisyphus and the Watergate scandal), the court was clearly moved by the emotional distress documented by the plaintiffs (which included discussions of suicide attempts). More ›

Nearly Fifty Debt Collector Calls in Two Weeks a Legitimate FDCPA Practice

A debt collector seeking to collect on a GAP credit card debt placed 49 telephone calls over the course of 18 days. The cardholder filed suit, arguing the calls constituted harassment under the Fair Debt Collection Practices Act (FDCPA). Specifically, the cardholder stated that he had to stop what he was doing every time the phone rang, which not only disrupted and distracted him from his daily activities, but also caused frustration and anxiety. 

A California federal court disagreed, finding the call frequency did not constitute harassment under the FDCPA because the debt collector waited at least 90 minutes between each call, did not contact the cardholder more than five times in a single day, and never left any voicemails. The court concluded the volume of calls resulted from the collector's inability to reach the cardholder, and that the number of attempts were legitimate and reasonable in light of the collector's unsuccessful efforts to reach the cardholder. Download a copy of the decision issued in Hinderstein v. Advanced Call Center Technologies, et al., Case No. CV-15-10017-DTB (C.D.Cal. Feb. 27, 2017)

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