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June 30, 2014 Case Digest

In Lodge v. Kondaur Capital, a bankruptcy debtor filed an action alleging that the defendant law firm violated the FDCPA and the automatic bankruptcy stay.  After the district court granted summary judgment to defendant, plaintiff appealed, contending that the district court erred by dismissing his claim for actual damages.  In affirming the district court, the appellate court first concluded that emotional distress damages are a sufficient type of “actual damages” recoverable for willful breach of the automatic stay, but that plaintiff failed to offer admissible evidence beyond general assertions of emotional distress to show an injury sufficient to support an award of actual damages. In affirming the district court in full, the appellate court also agreed that plaintiff failed to show that defendant was a debt collector subject to the FDCPA, and affirmed the grant of summary judgment to defendant on the FDCPA claim.

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June 29, 2014 Case Digest

In Dunavant v. Sirote & Permutt, the parties filed cross motions for summary judgment, requesting the court to resolve disputed legal issues as to whether defendant violated the FDCPA by publishing a notice of foreclosure sale after the state court enjoined further prosecution of the foreclosure action.  The court denied plaintiff's motion and granted defendant's motion, finding that the claim was barred by application of res judicata, because the same dispute and issues had been litigated in the state court foreclosure action.

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June 28, 2014 Case Digest

In Buchholz v. Valarity, LLC, plaintiff alleged that defendant called him on his cell phone in violation of the FDCPA and TCPA while attempting to collect a medical debt.  The parties filed cross motions for summary judgment.   Defendant alleged that plaintiff provided the cell number being called to the medical provider, and therefore provided consent under the TCPA.  Plaintiff denied providing the number.  The court found that the issue related to the source of the number was a disputed factual issue, and denied both motions.  The court also found that plaintiff's FDCPA claim, in which 233 calls were made over a 5 month period with 3 calls being made on some days, was best resolved by a jury as to whether the volume was harassing, and denied the motions as well.

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June 27, 2014 Case Digest

In Tourgeman v. Collins Financial, the appellate court reversed the district court’s entry of summary judgment in favor of defendant in a class action brought for alleged FDCPA violations.  Plaintiff sought to assert claims for alleged violations contained in letters from defendant that allegedly misrepresented the original creditor, despite the admission that plaintiff had not received the letters.  In reversing, the appellate court concluded that plaintiff still had standing because the sending of the allegedly misleading letters constituted a cognizable injury, regardless that the letter was not read by plaintiff, and that plaintiff did have standing.   

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June 26, 2014 Case Digest

In Brown v. Mandarich Law Group, plaintiff alleged that defendant violated the FDCPA by sending a letter directly to him, when defendant knew he was represented by counsel.  The case was subsequently settled for $2,000 plus attorney fees by operation of an offer of judgment, and defendant sought to offset the judgment with the amount that defendant had obtained earlier in a judgment against plaintiff in the state court collection case.  The court agreed, concluding that defendant’s $1,200 judgment could be used to offset the amount it would pay plaintiff pursuant to the offer of judgment, though the offset would not apply to any award for attorney fees.

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June 25,2014 Case Digest

In Enedah v. America’s Servicing Co., plaintiff alleged that the defendant law firm violated the FDCPA when attempting to collect a mortgage loan.  Defendant’s sole involvement in collecting the debt was alleged to be executing assignments and acting as foreclosure counsel for the creditor.  The court granted the defendant’s motion to dismiss, concluding that, though the law firm was generally subject to the FDCPA, the actions of attempting to foreclose on a security interest was not “debt collection” subject to the FDCPA.

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June 24, 2014 Case Digest

In Izquierdo v. Easy Loans Corp., plaintiff alleged that defendant violated the FDCPA by filing a collection lawsuit when it knew or should have known that the collection of the debt was prohibited by the expiration of the statute of limitations.   Defendant moved to dismiss, arguing that the limitation period had not run. The court disagreed and found that the cardholder agreement required application of Delaware's three year limitation period, and that the lawsuit was time-barred.

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June 23, 2014 Case Digest

In Dreher v. Experian, plaintiff sought to bring a class action for alleged violations of the FCRA by Advanta Bank and Cardwoks.  Advanta was the creditor of a debt that was falsely opened in plaintiff's name, which was later acquired by Cardworks after Advanta went out of business.  Plaintiff alleged that the tradeline indicating that the negative report was from Advanta, not Cardworks violated the FCRA, and sought to certify a class of all people similarly situated.  The court granted plaintiff's motion for certification, finding that there was a sufficiently similar relationship between all people that had incorrectly received a credit report incorrectly indicating that the negative report was from Advanta, not Cardworks.

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June 22, 2014 Case Digest

In Bartlett v. Blaser, Sorensen & Oleson, plaintiff alleged that defendant violated the FDCPA by filing a collection lawsuit in a venue outside of the county in which he lived, and by not sending the validation notice within 30 days of the filing of a lawsuit against him.  Defendant filed a motion for summary judgment, arguing that the state court debt collection lawsuit did not involved a consumer transaction, and that the FDCPA did not apply.  The court agreed, finding that the state court action was actually a tort subrogation claim seeking recovery for money paid as a result of plaintiff's negligence in performing plumbing services, and dismissed the case.

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June 21, 2014 Case Digest

In Hammond, plaintiff filed an adversary proceeding in bankruptcy court alleging that defendant violated the court's bankruptcy discharge order and the TCPA by attempting to collect a debt that had been scheduled in plaintiff's bankruptcy.  Defendant called plaintiff 143 times after the discharge.  After trial, the court concluded that defendant violated state law, the discharge order and the TCPA by calling his cell phone with a dialer to collect a discharged debt, and awarded plaintiff more than $145,000 in statutory damages and attorney fees.

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