In Walter v. HSM Receivables, plaintiff alleged that defendant violated the FDCPA. Defendant filed a bad faith counterclaim, contending that plaintiff’s action was brought for an improper purpose under Section 1692k(a)(3) of the FDCPA. The court granted the motion to dismiss, finding that though a debt collector may have a claim for recovery of attorney fees if a case is filed in bad faith, counterclaims are premature until there is a finding of bad faith on the part of the debtor.
In Kennedy v. Compucredit Holdings, plaintiff alleged that defendant’s balance transfer program violated the FDCPA in three ways: (1) failing to accurately state the debt validation notice; (2) making a false statement regarding the balance of the debt; and (3) falsely credit reporting the status of the debt. Defendant moved to dismiss, arguing that the settlement offer letter was accurate and not confusing. The court denied the motion, concluding that the notice was plausibly alleged to be confusing under the least sophisticated consumer standard when defendant offered to allow plaintiff to pay down an existing credit card debt while qualifying for a new credit card because the validation notice was potentially overshadowed. The court also found that the letter was potentially false or deceptive in stating the balance, because defendant’s promise that it would never sue to collect the debt as part of the balance transfer program may have conflicted with the credit card agreement's “no waiver of legal rights” provision. Finally, the court concluded that the letter was plausibly alleged to be false regarding potential credit reporting because defendant’s statement that it would not report negative information in connection with program to repay debt and qualify for new credit card conflicted with provisions in credit card agreement.
In Ware v. Bank of America, plaintiff alleged that defendant violated the FCRA by falsely reporting an extinguished debt to the credit bureaus. Defendant moved for summary judgment, arguing that the reporting was accurate and that the debt was not cancelled simply because defendant had issued a 1099-C. The court granted the motion, concluding that issuance of a 1099-C, without more, does not extinguish or cancel a debt.► Back to News & Resources