In Wise v. Zwicker & Associates, the district court granted defendant's motion to dismiss plaintiff's claim that the defendant law firm violated the FDCPA by attempting to collect attorney fees pursuant to a credit card agreement. The district court concluded that Utah law applied, which allowed the imposition of fees, and rejected plaintiff's claim that Ohio law should apply, when Ohio law bars enforcing the fee provision in consumer agreements. Plaintiff appealed, and the district court's decision was reversed. The appellate court found that there was a factual dispute unresolved by the pleadings as to which state's law applied, and therefore whether the attorney fee provision was enforceable was disputed and in need of further discovery.
In Douglas v. Select Portfolio Servicing, plaintiff alleged that defendant violated the FDCPA by continuing to attempt to collect a debt that was "unvalidated." Defendant moved for summary judgment, arguing that the two calls were not abusive, and that there was no need to verify the debt when plaintiff had not disputed the debt. The court granted the motion, finding that defendant did not violate the FDCPA by making a limited number of calls and there was no need to have proof of the validity of the debt at the time of the collection activity.
In Everage v. National Recovery Agency, plaintiff sought leave to amend his complaint to add a claim that defendant failed to meaningfully identify itself during several telephone communications in violation of the FDCPA. Defendant opposed the motion, arguing that the claim would fail, because the use of multiple names (NRA and National Recovery Agency) was not deceptive or a misrepresentation when the names included the full business name, the name under which it usually transacts business or a commonly used acronym. The court denied plaintiff's motion, finding bringing the claim was futile as it failed to state a viable cause of action when defendant was using legally permissible names.► Back to News & Resources