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Showing 8 posts in Second Circuit Court of Appeals.

La Boom! Second Circuit Detonates Expanding Circuit Split over Auto-Dialer Definition Under TCPA

Hinshaw continues to monitor the deepening circuit split over what constitutes an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), which restricts certain automated calls and text messages. To say there has been substantial debate by the courts and FCC concerning what constitutes an ATDS would be putting it lightly. And, just when it seemed a majority position was emerging, the playing field seems to have leveled with the Second Circuit's decision in Duran v. La Boom Disco, Inc. More ›

Legal Guidance Watch: Second Circuit Nostra Sponte Certifies a Series of Mortgage Lender Compliance Questions to New York Court of Appeals

The Second Circuit recently certified two questions to the New York Court of Appeals regarding the requisite proof needed for borrowers to dispute the lender's compliance with New York Real Property Procedures and Acts ("RPAPL") § 1304 and the required filings under RPAPL § 1306 for a multi-borrower mortgage loan. The New York Court of Appeals has not yet ruled on these statutes and the requisite proof needed to comply with them. A decision on these issues could greatly impact the mortgage industry, given the impact of these statutes on mortgage foreclosure proceedings. More ›

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

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 ›

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

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 ›

Consumer Plaintiff Avila Sues Using the Safe Harbor Precedent She Established in Avila Decision—and Loses

Following the Second Circuit's 2016 decision in Avila v. Riexinger & Associates (Avila I), consumer plaintiff Annmarie Avila returned to court in Avila v. Reliant (Avila II) to sue for violations of the Fair Debt Collection Practices Act (FDCPA) under the so called "safe-harbor" provision she helped establish in her previous successful appeal. More ›

ACA International Continues Setting Precedent Regarding Autodialers: Second and Third Circuits Follow Suit in Adopting a Narrowed Definition

The Second Circuit, in King v. Time Warner Cable, Inc., and the Third Circuit, in Dominguez v. Yahoo!, Inc., relied upon the D.C. Circuit's decision in ACA International v. FCC in limiting the definition of an autodialer under the Telephone Consumer Protection Act. Dominguez found that Yahoo's text message system did not fit the definition of autodialer, while King emphasized that only a device that currently has the ability to perform autodialing functions can qualify as an autodialer system. More ›

Is CFPB's Constitutionality Headed for the U.S. Supreme Court?

At the close of a 108 page decision filed in response to motions to dismiss a CFPB enforcement action, Consumer Financial Protection Bureau v. RD Legal Funding, LLC, C.A. No. 17-cv-890, Judge Loretta Preska of the U.S. District for the Southern District of New York (within Second Circuit jurisdiction) granted the motions by concluding the CFPB's structure was unconstitutional. This is significant because the D.C. Circuit had determined en banc earlier this year that the CFPB was constitutional in PHH Corp. v. CFPB. More ›

Second Circuit Resolves Uncertainty Surrounding "Reverse Avila" Claims

The Court of Appeals seems to have halted much uncertainty surrounding "reverse Avila" claims by unanimously affirming the New York federal court's decision in Taylor v. Financial Recovery Services, Inc., No. 17-1650, 2018 U.S. Dist. LEXIS ------- (2d Cir. March 29, 2018) (found here). In the wake of Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016), savvy plaintiffs have argued that the failure to disclose that a debt is no longer accruing interest is false and misleading in violation of Section 1692e of the Fair Debt Collection Practices Act (FDCPA). The Second Circuit disagreed and held that "a collection notice that fails to disclose that interest and fees are not currently accruing on a debt is not misleading " when the letter correctly states a consumer's balance when the letter was issued.

Distinguishing Avila, the Second Circuit explained that the collection letter in Avila was misleading because a consumer could pay the full amount listed on the letter but such payment would not settle the debt. Under the facts of Avila, a consumer who paid the amount due on the collection letter would still be on the hook for an unpaid balance because interest and fees "accumulated after the notice was sent but before the balance was paid." In Taylor, the creditor instructed the collector not to accrue interest or fees on the underlying debt. Thus, because a consumer could have satisfied their debt by "making reasonably prompt payment" of the balance stated on the collection letter, it was not misleading notwithstanding the creditor's right to accrue post-placement interest on that same debt. The Second Circuit noted that the worst "harm" to plaintiffs in Taylor would be to pay sooner rather than later in order to avoid interest or fees accruing, but acceleration of payment "falls short of the obvious dangers facing consumers in Avila." More ›

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