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.
In Lavear v. Barton, plaintiff alleged that defendant misrepresented his status as a lawyer for the original creditor while attempting to collect a medical debt, and therefore violated the FDCPA. Defendant was attempting to collect the debt on behalf of the assignee, but wrote letters and field suit identifying his client as the original crediotr. Defendant moved to dismiss, arguing that the claims were barred by the FDCPA's one year statute of limitations. The court found that the allegedly wrongful conduct had occurred more than one year earlier, so that the claims should be time barred. The court also recognized the general weight in authority has concluded that the limitation period cannot be equitably tolled, but still denied the motion because that precise issue of the application of equitable tolling to an FDCPA claim was pending before the Eight Circuit Court of Appeals in a related case.► Back to News & Resources