Midland Funding, LLC., has filed a petition for certiorari seeking Supreme Court review of the Eleventh Circuit decision in Johnson v. Midland Funding, LLC., 2016 U.S. App. LEXIS 9478, No. 15-11240 (May 24, 2016), petition for cert. filed, No. 16-348, (Sept. 16, 2016). In Johnson, the court expanded its earlier decision in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1844, 191 L.Ed.2d 724 (2015), to find that not only does a proof of claim on a time-barred debt violate the FDCPA, but the FDCPA claim is not in conflict with, nor is it precluded by, the Bankruptcy Code. [Read more…] about Cert. Petitions Filed in FDCPA Cases
Non-Threatening Collection Letter May Underlie FDCPA Claim
The Fifth Circuit held that “a collection letter violates the FDCPA when its statements could mislead an unsophisticated consumer to believe that her time-barred debt is legally enforceable, regardless of whether litigation is threatened.” Daugherty v. Convergent Outsourcing Inc., No. 15-20392 (5th Cir. Sept. 8, 2016). [Read more…] about Non-Threatening Collection Letter May Underlie FDCPA Claim
Fourth and Seventh Circuits Peer Down from the Ivory Tower on FDCPA Issue
The Seventh and Fourth Circuits have joined the fantasy world in which the debtor, the trustee, or the court stands as gatekeepers against debt collectors determined to sneak a collectible debt into the debtor’s chapter 13 plan. Owens v. LVNV Funding, LLC., Nos. 15‐2044, 15‐2082, 15‐2109 (7th Cir. Aug. 10, 2016); Dubois v. Atlas Acquisitions, LLC. No. (4th Cir. Aug. 25, 2016). In both cases, the voice of reason was represented by a dissenting opinion. [Read more…] about Fourth and Seventh Circuits Peer Down from the Ivory Tower on FDCPA Issue
Eighth Circuit Lets the Fox in the Henhouse
The Eighth Circuit held that because of protections offered by the Bankruptcy Code, a debtor cannot file a separate action for violation of the FDCPA when a debt collector files a proof of claim for a stale debt. Nelson v. Midland Credit Management, Inc., No.15-2984 (8th Cir. July 11, 2016).
[Read more…] about Eighth Circuit Lets the Fox in the Henhouse
No Conflict Between FDCPA and Code
“The Bankruptcy Code does not preclude an FDCPA claim in the context of a Chapter 13 bankruptcy when a debt collector files a proof of claim it knows to be time-barred.” Johnson v. Midland Funding, LLC, No. 15-11240 (11th Cir. May 24, 2016). In two separate cases, Alieda Johnson and Judy N. Brock sued debt collectors for violation of the FDCPA alleging that they used “false, deceptive, or misleading representation or means in connection with the collection of any debt” (15 U.S.C. § 1692e) when they filed proofs of claim in the plaintiffs’ bankruptcy cases for debts they knew to be time-barred. The district courts granted the debt collectors’ motions to dismiss finding that the Bankruptcy Code permits a creditor to file a proof of claim for which it has a “right to payment,” and that the FDCPA and the Code are irreconcilable. The cases were consolidated on appeal to the Eleventh Circuit. [Read more…] about No Conflict Between FDCPA and Code
NACBA Weighs in on FDCPA Claims for Time-Barred Debts
NACBA has filed an amicus brief arguing that the Eighth Circuit Court of Appeals should find that a debt collector that files a proof of claim for a time-barred debt is subject to suit under the FDCPA. Nelson v. Midland Credit Management, No. 15-2984 (8th Cir.) (filed January 25, 2016). The brief seeks reversal of the district court’s finding that filing a proof of claim for a time-barred debt does not violate the FDCPA. [Read more…] about NACBA Weighs in on FDCPA Claims for Time-Barred Debts
Nelson v. Midland Credit Management, No. 15-2984 (8th Cir.)
Type: Amicus
Date: January 25, 2016
Description: Whether filing a proof of claim for a time-barred debt violates the FDCPA.
Result: Judgment affirmed, July 11, 2016. Debtor lost.
FDCPA Not Repealed by Bankruptcy Code
In good news to start the New Year, the Second Circuit has found that the Bankruptcy Code does not preclude application of the FDCPA to a claim involving a debt discharged in bankruptcy. Garfield v. Ocwen Loan Servicing, No. 15-527 (2d Cir. Jan. 4, 2016). [Read more…] about FDCPA Not Repealed by Bankruptcy Code
Owens v. LVNV Funding, Nos. 15-2044 (consol. 15-2082, 15-2109) (7th Cir.)
Type: Amicus
Date: December 18, 2015
Description: Whether proof of claim for time-barred debt may be the basis for a claim for violation of the FDCPA.
Result: Judgment affirmed, August 10, 2016
POC for Time-Barred Debt May Violate FDCPA
The Bankruptcy Court for the Northern District of Illinois added to its body of law finding that a debt collector may violate the FDCPA by filing a proof of claim for a time-barred debt. Davenport v. Calvary Investments (In re Davenport), No. 14-30261, Adv. Pro. 15-559 (Bankr. N.D. Ill. Dec. 14, 2015). [Read more…] about POC for Time-Barred Debt May Violate FDCPA