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February 26, 2015 Case Digest

In Valle v. RJM, plaintiff alleged that defendant violated the FDCPA and FCRA by obtaining his credit report without a permissible purpose.  Plaintiff opposed defendant’s motion for summary judgment, arguing that a collection agency has a permissible purpose only when the credit pull is done attempting to collect a deposit account.  The court rejected plaintiff’s argument, and granted summary judgment because defendant showed that the credit report was accessed as part of an effort to collect debts owed by plaintiff, which is a permissible purpose under FCRA.  The court also concluded that defendant did not need to have proof to establish the debt at the time of the credit pull, because defendant was entitled to rely on the information provided by the creditor showing a debt was owed.

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February 25, 2015 Case Digest

In Barata v. Nudelman, Klemm & Golub, plaintiff alleged that defendant’s collection letter violated the FDCPA by falsely representing that there was meaningful attorney review of the debtor files prior to the letter being sent.  Defendant move to dismiss, arguing that there was no false implication in the letter that an attorney had reviewed the letter and that the sheer volume of letters sent was insufficient to raise an inference that the letters were sent without meaningful attorney review.  The letter was written on firm letterhead, included the name of the firm’s partners and was signed in the firm’s name.   The court granted the motion, finding that plaintiff had failed to plausibly allege that there was no meaningful attorney involvement when there were no allegations regarding how many letters were sent, how many attorneys were involved in sending the letters and the length of time involved.  The court concluded: “Discovery cannot serve as a fishing expedition through which plaintiff searches for evidence to support facts he has not yet pleaded.”

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February 24, 2015 Case Digest

In Marcinski v. RBS Citizens, plaintiff alleged that defendant violated the FCRA by credit reporting two accounts as delinquent when those accounts were opened while plaintiff was incarcerated.  Defendant moved to dismiss, arguing that the claims were time barred because the credit reporting was done more than two years prior to the filing of the suit.  The court denied the motion, finding that the limitation period under the FCRA does not begin to accrue until plaintiff first learns that the defendant has failed to conduct a reasonable investigation of the dispute, and not at the time that the tradeline was reported.

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February 23, 2015 Case Digest

In Galati v. Manely Deas, plaintiff alleged that the defendant law firm violated the FDCPA by initiating a foreclosure action when it knew or should have known that the firm’s client was not the holder of the mortgage or entitled to enforce the debt.  After the district court granted defendant’s motion to dismiss, plaintiff appealed.  The appellate court affirmed, concluding that even if the defendant did not have the immediate means to prove the debt, there was nothing improper in filing the foreclosure action and that the assignment of the mortgage from a defunct bank was not capable of confusing the least sophisticated consumer regarding whether the debt was actually owed.

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May You File a Proof of Claim on a Time-Barred Debt? - The Courts Can't Decide.

As you may recall, in our July 2014 article “More Traps for Debt Collectors Attempting to Collect Time-Barred Debts,” the Eleventh Circuit surprised the collection industry in Crawford v. LVNV Funding, LLC by ruling that the filing of a proof of claim to collect a time-barred debt in a Chapter 13 bankruptcy violated the Fair Debt Collection Practices Act (FDCPA).

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February 22, 2015 Case Digest

In Martin v. Litton Loan Servicing, plaintiff alleged that defendant violated the FDCPA while attempting to collect her mortgage payments because unauthorized real estate tax charges were included in the amount of the debt.  Defendant moved to dismiss, arguing that the FDCPA did not apply because plaintiff alleged that the loan was not in default, based on the argument that the additional charges could not lawfully be included.  The court denied the motion, finding the required analysis was whether defendant had put the account into a  default status, which it had after plaintiff had failed to pay the real estate tax charges.  Plaintiff's argument that the taxes were not owed, and that the loan therefore should not be in default, was irrelevant to whether the FDCPA applied.

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February 20, 2015 Case Digest

In Blandina v. Midland Funding, plaintiff alleged that various defendants contributed to violate the FDCPA by sending a collection letter that allegedly and falsely implied that interest was accruing, and filed a putative class action.   After the class was certified, defendants filed a motion to determine the available statutory damage cap available under the FDCPA, arguing that the limit was $500,000 per action regardless of the number of defendants.  Plaintiff argued that the damages were limited to $500,000 per defendant, and could be aggregated.  The court cited with defendant, and found that the available damages was limited to a maximum of $500,000 per action, and that class caps could not be stacked.

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February 19, 2015 Case Digest

In Glazewski v. CKB, plaintiff alleged that defendant violated the FDCPA by filing a collection lawsuit outside the venue where the debtor resided, in violation of the FDCPA.  Defendant moved to dismiss, arguing that the FDCPA claim was time-barred when the collection lawsuit was filed more than one year prior to plaintiff bringing the FDCPA claim. The collection lawsuit was filed three years earlier, and dismissed after a payment plan was negotiated with the debtor.  After the debtor failed to make the payments, defendant sought to reinstate the case.   The court denied the motion, finding that defendant had brought a new “legal action” when the defendant refiled the original lawsuit in an effort to reinstate the case.

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February 18, 2015 Case Digest

In Hamburger Northland Group, plaintiff alleged that defendant violated the FDCPA in various ways by placing calls to her home seeking to collect a debt owed by a third party.  Defendant moved for summary judgment, arguing that plaintiff was unable to demonstrate that the underlying debt was a consumer transaction subject to the FDCPA.  The court denied the motion and found that there was a disputed factual issue, because plaintiff testified that she had witnessed several of the transactions that resulted in the debt, and that those transactions related to personal purchases.  The court found that the fact that plaintiff was not the debtor was not fatal to a showing that the debt was incurred for personal purposes. 

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February 17, 2015 Case Digest

In Webster v. Bayview Loan Servicing,plaintiff alleged that defendant violated the TCPA and FDCPA, and defendant served plaintiff with an offer of judgment for the full amount of relief sought.  In response, plaintiff filed a motion for leave to file an amended complaint to add class allegations, and defendant moved to dismiss for lack of jurisdiction.  The court concluded that there was no longer an active case or controversy between the parties after defendant offered complete relief to plaintiff, and the effort to add class allegations was insufficient to stave off dismissal as the only claims at the time the offer was made were the individual claims.

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