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Showing 33 posts in FDCPA.

Second Circuit Re-Emphasizes that FDCPA Claims Must Allege a Material Representation

December 16, 2019 by Fernando C. Rivera-Maissonet

The Second Circuit Court of Appeals recently took the opportunity to apply its 2018 holding in Cohen v. Rosicki, which had held that a consumer pursuing a claim for violation of Fair Debt Collection Practices Act (FDCPA) must allege facts sufficient to demonstrate a material misrepresentation. Materiality depends on "whether the false statement would frustrate a consumer's ability to intelligently choose his or her response," or if the representation "could mislead the debtor as to the negate and legal status of the underlying debt," or "could impede the consumer's ability to respond to or dispute collection." More ›

U.S. Supreme Court Resolves Circuit Split, Applies Occurrence Rule to FDCPA Statute of Limitations

December 11, 2019 by Whitney S. Goldin

Earlier this year, this blog reported on the Supreme Court's grant of certiorari in Rotkiske v. Klemm to resolve a split in circuits on the Fair Debt Collection Practices Act's (FDCPA) statute of limitations. This week, in an 8:1 opinion delivered by Justice Thomas, the Court concluded that the one-year statute of limitations in the FDCPA begins to run when the violation occurs, not when the violation is discovered. In doing so, they overturned rulings by the Fourth and Ninth Circuit, which had held the FDCPA's statute of limitations was subject to equitable tolling. More ›

FDCPA Claims Dismissed As a Result of Plaintiff's Bad Faith Bankruptcy Conduct

September 25, 2019 by Samuel C. Bodurtha

In Vedernikov v. Atl. Credit & Fin., Inc., (Vedernikov I), the U.S. District Court of New Jersey granted the defendant Midland Funding's motion to dismiss, which successfully argued the plaintiff should be estopped from bringing FDCPA claims that he failed to disclose during a bankruptcy action from which he had been discharged. After Midland Funding filed its motion to dismiss in Vedernikov I, the same Court also issued an Order to Show Cause and ultimately dismissed Vedernikov v. Oliphant Financial, LLC (Vedernikov II), another matter brought by the same plaintiff. 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, Matthew B. Corwin

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 ›

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 ›

CFPB Proposes New Rules to Modernize Application of the FDCPA

May 23, 2019 by Fernando C. Rivera-Maissonet

On May 7, 2019, the Consumer Financial Protection Bureau (CFPB) issued a notice of proposed rulemaking (NPRM) for application of the Fair Debt Collection Practices Act (FDCPA). The significance of this NPRM cannot be understated. The CFPB's proposed rules cover multiple aspects of debt collection and are one of most substantial developments in the debt collection industry since the enactment of the FDCPA in 1977. The proposed rules seek to modernize application of the FDCPA to match the sophistication of today's electronic communications (e.g., voicemails, text messages, and electronic mail) and provide safe harbors and prescribe prohibited conduct. We've highlighted some of the proposed rules that demonstrate the significant impact on both debt collectors and debtors below. More ›

SCOTUS Determines Foreclosure Firm is Not a Debt Collector Under the FDCPA's Primary Definition

March 22, 2019 by Maura K. McKelvey

Less than three months after hearing oral arguments in Obduskey v. McCarthy & Holthus LLP, Case No. 17-1307, the United States Supreme Court held, in a 9-0 decision, that a business engaged in nonjudicial foreclosure proceedings is not a "debt collector" under the Fair Debt Collection Practices Act (FDCPA, "the Act"), except for the limited prohibitions set forth in 1692(f)(6). The decision provides helpful guidance to law firms and loan servicers who pursue nonjudicial foreclosures. More ›

The Third Circuit Takes a More Expansive Approach to What Constitutes a Debt Collector under the FDCPA

March 4, 2019 by John P. Ryan, Whitney S. Goldin

On February 22, 2019, the Third Circuit in Barbato v. Greystone Alliance, LLC, issued a decision that expands the scope of the Fair Debt Collection Practices Act's (FDCPA) definition of the term "debt collector" to any entity that acquires debt for the purpose of collection, but outsources the actual debt collection activity. More ›

U.S. Supreme Court Agrees to Resolve Circuit Split on When the Limitations Period for FDCPA Claims Should Start

February 28, 2019 by Matthew B. Corwin

As we predicted last year, the United States Supreme Court earlier this week granted Plaintiff's petition for certiorari in Rotkiske v. Klemm to resolve a split in the circuits on whether the statute of limitations for a Fair Debt Collection Practices Act (FDCPA) claim begins when the alleged violation occurred (known as the "occurrence rule") or when the consumer discovers the alleged violation (known as the "discovery rule"). More ›

New York Mandates New Consumer Protections for Relatives of Deceased Debtors

January 22, 2019 by Fernando C. Rivera-Maissonet

Effective March 28, 2019, § 601-a of New York's General Business Law ("GBL 601-a") will provide additional consumer protections to relatives of deceased borrowers. Typically, when a debtor passes away, the obligations on their uncollected debts pass to the debtor's estate. This can result in confusion about whom debt collectors should contact and what they can say regarding the decedent's unpaid debt. GBL 601-a will require, among other things, that no representations are made to relatives of deceased debtors to the effect that they are obligated to pay the decedent's unpaid debt. More ›

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