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January 29, 2015 Case Digest

In Lee v. Robinson, Reagen & Young, plaintiff alleged that defendant violated the FDCPA by leaving a message for the debtor that did not state the caller was a debt collector.  Defendant moved for summary judgment, arguing that the message was not a communication under the FDCPA.  The court denied the motion, finding that, although the message did not specifically mention the debt or convey any information about the debt, it was a communication because it was part of the ongoing efforts to communicate about that debt. 

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January 28, 2015 Case Digest

In LaGrone v. LVNV, plaintiff alleged that defendant violated the FDCPA by filing a proof of claim on a debt that was time-barred.  Defendant moved to dismiss, and contrary to the recent trend, the bankruptcy court agreed and dismissed the case.  Specifically, the court found that the filing of a bankruptcy claim that is subject to an affirmative defense, without more, is neither unfair, false or misleading under the FDCPA.  There is also a petition pending the Supreme Court to review the recent Crawford decision out of the Eleventh Circuit that reached an opposite conclusion and found that the filing of the proof of claim is an FDCPA violation.

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January 26, 2015 Case Digest

In Slorp v. Lerner, Sampson & Ruthfuss, plaintiff alleged that defendant violated the FDCPA by filing suit, and continuing to prosecute a mortgage foreclosure action.  The district court dismissed the case, finding it was barred by the FDCPA’s one year statute of limitations, and plaintiff appealed.  Plaintiff argued that the claim was timely filed, under the continuing violation doctrine, because defendant’s subsequent prosecution of the case exacerbated the alleged injuries.  The court rejected defendant’s argument, and affirmed the district court finding that the limitation period runs from the date the original foreclosure action was filed, rendering the continuing violation doctrine inapplicable.

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2015 Super Lawyers Recognizes SFN&I Attorneys

For 2015, Super Lawyers had recognized the efforts and contributions of the top lawyers in Louisiana. The following attorneys have been selected by their peers and methods of independent research and evaluation to conclude the list of Super Lawyers. These lawyers have achieved the highest number of points during the nomination process in order to be recognized at a Super Lawyer of Louisiana. The status of the Louisiana Super Lawyers Top List is to highlight the "best of the best" within the state and among the legal community. Sessions Fishman Nathan & Israel is pleased to announce the 2015 Top Rated Attorneys.

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"HAVE YOU EVER BEEN CONVICTED....?" AN ILLEGAL QUESTION!

A movement to remove the question "Have you ever been convicted . . . ?" from employment applications is sweeping the nation.  Known as "Ban the Box," these laws prohibit employers from asking about criminal history on job applications and delay background checks until later in the hiring process.

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January 24, 2014 Case Digest

In Brown v. Van Ru, plaintiff alleged that defendant's voice mail message left for the payroll department with plaintiff's employer's general voicemail box violated the FDCPA because it alternatively failed to contain required disclosures, or constituted a third party disclosure of plaintiff's debt.  The message asked for a return call from the payroll personnel, and included the company name and a reference number.  The court granted defendant's motion to dismiss, concluding that the message was not a communication under the FDCPA because it did not communicate any information about the debt, was not directed at plaintiff, and did solicit a response from plaintiff, while rejecting plaintiff's argument that inclusion of the company name indirectly implied a debt.  The court also found that the generic message overheard by a third party was not a disclosure of the debt because the message did not refer to the debt.

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January 22, 2015 Case Digest

In Zarichny v. Complete Payment Recovery, plaintiff filed a putative class action alleging that defendant violated the TCPA and FDCPA while attempting to collect a debt plaintiff owed to her university.  Defendant moved to dismiss both claims, and to strike the class allegations.  The court granted the motions in part.  First, the court granted the motion to strike the class claims, finding plaintiff's proposed classes were improper fail safe classes because membership in the class was predicated on a finding of liability (the TCPA class members were limited to people that were called without consent; to ascertain the FDCPA class, it was necessary to identify those people that were not sent an initial validation notice).    The court also granted the motion to dismiss most of the FDCPA claims, because plaintiff's status as a college student was not a sufficient basis to conclude that calling during school hours would be at a time known to be inconvenient; that 11 calls over a 6 month period was not excessive; and that attempting to collect a debt that plaintiff  did not think was valid was not a false or misleading representation, especially when plaintiff had not disputed the debt.  The court denied the motion as to the failure to send the validation notice, rejecting defendant's argument that unanswered calls and voice mails were not an initial communication, and that defendant was obligated to send the initial validation notice within 5 days of the first voice mail; the TCPA claim survived because plaintiff had included sufficient detail supporting a claim that the calls were made with an ATDS by describing the timing of the calls and the content of the messages.

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January 21, 2015 Case Digest

In Avarado v. Bay Area Credit Service, plaintiff alleged that defendant violate the TCPA by calling her cell phone with a dialer and without consent.  Defendant denied that the dialing equipment was an ATDS under the TCPA, and moved the court to stay the case under the primary jurisdiction doctrine while the FCC clarified the definition of an ATDS.  The court denied the motion, finding that the court could apply the meaning of "capacity" as used in the statutory definition without additional guidance from the FCC, and because there was no indication that the FCC was likely to issue responses to the several pending petitions any time soon.

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January 20, 2015 Case Digest

In Mavris v. RSI Enterprises, plaintiff filed a putative class action alleging that defendant’s collection letters violated the FDCPA in two ways: first, the initial letter allegedly failed to contain a proper validation notice because the letter instructed the debtor to send any correspondence to the creditor and by demanding payment within 30 days of the validation notice being sent.  Second, plaintiff alleged a subsequent letter violated the FDCPA by stating that the account would be sent to a  “third party collections company” if not paid, allegedly misrepresenting that the account had not already been placed with a debt collector.  Defendant moved for summary judgment, arguing it was not a debt collector because the debt was not in default at the time it was acquitted.  The court denied the motion, finding that though the term default had not been defined by the underlying contract, and therefore that there was a disputed factual issue on when the debt went into default.

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January 19, 2015 Case Digest

In El Bey v. Receivables Performance Management, plaintiff alleged that defendant accessed his credit report without a permissible purpose and in violation of the FCRA.  Defendant moved to dismiss, arguing that plaintiff had failed to plausibly alleged an FCRA claim base don an adequate factual foundation.  The court concluded that plaintiff had sufficiently pled a claim to survive the motion, because plaintiff supported the claim with facts alleging that he had no prior dealings  with defendant, never applied for credit with defendant and never executed a contract with defendant.  Moreover, plaintiff alleged that he had given notice to defendant of the improper credit pull, but defendant failed to respond in any way.

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