In Graveling v. Sirote & Permute, plaintiff alleged that defendant violated the FDCPA by continuing collection efforts after receipt of plaintiff's request to cease further communications. Defendant moved for summary judgment, arguing that plaintiff's cease and desist letter was also a debt dispute, which gave defendant the option to either cease collections, or verify the debt, and that the subsequent communications were to verify the debt. The court agreed with defendant, concluding that defendant properly communicated with plaintiff to verify the debt.
In McCarter v. Kovitz, Shifrin & Nesbit, plaintiff filed a putative class action alleging that defendant violated the FDCPA by sending a collection letter seeking repayment of past due condominium assessments in two ways - first, by misstating the validation notice, and second, by requesting attorney fees. Defendant moved to dismiss, arguing the validation notice essentially parroted the statute and that the attorney fees were permitted by state law. The motion was granted in part, as the court found that plaintiff stated a plausible overshadowing claim because the letter demanded full payment within 30 days of the mailing of the notice, as the 30 day validation period ran from the receipt of the notice rather than the mailing date. The court dismissed the part of the claim related to the attorney fees though, finding that state law permitted the fees incurred to be added to the account balance.
In Collins v. Portfolio Recovery Associates, plaintiff alleged that defendant violated the FDCPA by filing a collection lawsuit against her when she was not the debtor, but a victim of identity theft. Defendant moved for summary judgment, arguing that plaintiff could not be a consumer under the FDCPA because, if truly a victim of identity theft, plaintiff was unable to demonstrate that the debt was incurred for personal, family or household purposes so as to be a "debt" under the FDCPA. The court rejected defendant's argument, finding the position untenable and contrary to the remedial purposes of the FDCPA, especially when there was no evidence that the debt was incurred for commercial purposes and the underlying credit card was a consumer card.
In Nigro v. Mercantile Adjustment Bureau, the district court entered summary judgment in favor of defendant on plaintiff's claim under the TCPA. Plaintiff appealed, arguing that the court erred by finding that he had provided consent when his cell number was furnished to the creditor, a utility company, when plaintiff called to cancel the service of his recently deceased mother-in-law, the debtor. The appellate court reversed, finding that plaintiff did not knowingly consent to the calls to his cell phone because his number was not provided to the creditor at the time the debt was incurred, and because plaintiff was not the debtor.► Back to News & Resources