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July 29, 2014 Case Digest

In Harris v. Barton, plaintiff alleged that defendant violated the FDCPA by falsely representing meaningful attorney involvement in the sending of collection letters.  Defendant moved to dismiss, arguing that the claim was barred by the FDCPA's one year statute of limitation.  The court denied the motion, finding that the date the letter was sent was disputed, and that discovery would be needed to determine the date the letter was sent.

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July 28, 2014 Case Digest

In McIvor v. Credit Control, plaintiff alleged that defendant violated the FDCPA by failing to include the dispute when continuing to credit report his debt.  Defendant moved for summary judgment, arguing that the communication it had with the credit bureau related to investigating the  dispute, and therefore was not a communication under the FDCPA.  The court agreed, finding that defendant was responding to the dispute as required by the FCRA, and that the FDCPA would not apply to the communication.

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July 25, 2014 Case Digest

In Janetos v. Fulton, Friedman & Gullace, plaintiff filed a putative class action alleging that defendant violated the FDCPA, and moved to certify the class.  Plaintiff alleged that defendant's initial letter failed to properly contain the required validation disclosures.  The court found that the class claims would be sufficiently related and based on the same general letter that permitted certification of a class of about 19,000 consumers.

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July 24, 2014 Case Digest

In DiBaattista v. Buckalew, Frizell & Crevina, plaintiff filed a putative class action alleging that defendant's collection letter violated the FDCPA.  The court granted defendant's motion to dismiss, and plaintiff appealed.  Plaintiff argued on appeal that the letter violated the FDCPA because it listed certain remedies that could be taken if plaintiff failed to pay the outstanding HOA fees, including the filing of a lien or a foreclosure action, and by failing to itemize the debt.  The appellate court affirmed the dismissal, concluding that there is no obligation to itemize the debt  or any prohibition against stating the amount of the debt in a single sum.  The court also found that the letter was accurate, and the listed remedies not an unfair or harassing collection practice.

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More Traps For Debt Collectors Attempting To Collect Time-Barred Debts

As bankruptcy filings increase, some debt collectors have started filing proofs of claim on debts otherwise barred by the applicable state statutes of limitations.  The Eleventh Circuit, however, recently held in Crawford v. LVNV Funding, LLC that filing a proof of claim to collect a time-barred debt in Chapter 13 bankruptcy violated the Fair Debt Collection Practices Act (FDCPA). 

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July 22, 2014 Case Digest

In Ikonomidis v. Duggins Law Firm, plaintiff alleged that defendant violated the FDCPA by falsely implying that it would sue the debtor to recover a previously obtained judgment.  Defendant moved for summary judgment, arguing there was not threat of litigation, but instead efforts to collect on the existing judgment.  The letter to plaintiff was on law firm letterhead, but was not signed by the lawyer.  The court concluded whether the letter was an implied threat was a question of fact to be decided by the jury, and denied defendant’s motion.

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July 21, 2014 Case Digest

In Cherkaoui v. Santander, plaintiff alleged that defendant violated the TCPA and FCRA when attempting to collect his mortgage debt.  Defendant moved for summary judgment, arguing that the TCPA claim failed because plaintiff had consented to the calls, and the FCRA claim failed because it had a permissible purpose for pulling plaintiff’s credit report.  In dismissing the TCPA claim, the court found that plaintiff had provided prior express consent because plaintiff had provided his number on the credit application, and never expressed an indication that he wanted to revoke that consent.  The court also rejected the FCRA claim, finding that defendant had obtained the credit report for a permissible purpose when periodically checking the credit report as part of an account review, and that plaintiff sustained no actual damages when the report was not viewable by anyone other than defendant and plaintiff’s credit score was not affected.

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July 19, 2014 Case Digest

In Compressor Engineering v. Manufacturers Financial, plaintiff alleged that defendant violated the TCPA by sending unsolicited faxes, and sought to prosecute the case as a class action.  Defendant served plaintiff with an Offer of Judgment, which plaintiff did not accept.  Defendant then moved to dismiss, arguing that the court lacked jurisdiction as there was no longer a live case or controversy because defendant had offered plaintiff everything to which it was entitled under the TCPA.  Plaintiff opposed the motion, arguing that the offer did not include an award for attorney fees.  The court agreed with defendant, finding the offer did provide full relief and attorney fees were not statutorily available, and that the court lacked jurisdiction.  The case was dismissed.

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July 18, 2014 Case Digest

In Haddad v. Alexander, Zelmanski, Danner & Fioritto, plaintiff alleged that defendant violated the FDCPA while attempting to collect unpaid assessments to a condo association by continuing to collect debts without properly verifying the debts.  After the district court granted defendant’s motion for summary judgment, plaintiff appealed and persuaded the appellate court to reverse the decision.  Specifically, the appellate court concluded, in a matter of first impression in the circuit, that verification of a debt required a debt collector to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the debt.  In this case, the verification was insufficient because it lacked details of the debt - such as the date and nature of the transaction, the source of the fee for the service at a specified time or description of a fine for a particular offense. 

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July 17, 2014 Case Digest

In Olson v. Midland, plaintiff alleged that defendant violated the FDCPA by sending a privacy notice to him directly when defendant knew that he was represented by counsel  The district court dismissed the claim, and plaintiff appealed.  The appellate court affirmed the dismissal, finding that the sending of the privacy notice was not a communication attempting to collect a debt, and therefore did not need to be sent to plaintiff’s attorney. 

 

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