In Joy v. MERSCORP, Inc., No. 5:10-CV-218-FL, 2013 WL 1246856 (E.D.N.C. Mar. 27, 2013), the Eastern District of North Carolina held that a borrower stated a claim for a violation of the FDCPA against a loan servicer in connection with documents filed in foreclosure proceedings. The plaintiff sued several defendants alleging a violation of § 1692e of the FDCPA claiming that the defendants filed false, deceptive, and misleading documents in connection with foreclosure proceedings. Nationwide Trustee Services, Inc. ("Nationwide") moved for a judgment on the pleadings, and Litton ...
Judge Donald Middlebrooks recently dismissed a plaintiff's "permissible purpose" claim under the Fair Credit Reporting Act ("FCRA") where the alleged facts showed that the defendant/creditor was attempting to collect a debt and had a good faith belief that the account belonged to the plaintiff. In Little v. Asset Acceptance, Case No. 9:12-cv-81116 (S.D. Fla.), Carole Little filed suit against Asset Acceptance, LLC, claiming that Asset had no permission to access her credit report, that she had never applied to Asset for credit, and that she does not maintain a credit account with ...
The Tenth Circuit recently held that a borrower presented sufficient evidence of actual damages to sustain a FCRA claim against a loan servicing company. The Tenth Circuit also affirmed the district court's decision to dismiss the FCRA claim with respect to a willful violation and the FDCPA claim. In Llewellyn v. Allstate Home Loans, Inc., --- F.3d ---, 2013 WL 1238615 (10th Cir. Mar. 28, 2013), the plaintiff filed suit against a loan servicing company and law firm retained to commence foreclosure proceedings alleging violations of the FDCPA, FCRA, and state law. The district court ...
A federal court in Illinois recently denied a motion for class certification of a TCPA claim due to the predominance of individualized issues of proving whether the putative class members had consented to the defendant's phone calls. The case illustrates the point that defining a class to include only those debtors who had not provided their phone numbers to the original creditor in a transaction does not always eliminate the individualized nature of the issue of consent. In the case, Jamison v. First Credit Services, Inc., 2013 WL 1248306 (N.D. Ill. Mar. 28, 2013), the named plaintiff ...
In O'Bryne v. Portfolio Recovery Associates, Inc., No. cv447-IEG (NLS), 2013 WL 1223590 (S.D. Cal. Mar. 26, 2013), the Southern District of California held that a debt collector did not violate the Fair Debt Collection Practices Act ("FDCPA") by seeking to collect principal, interest, and fees in a collection lawsuit under the common law theories of account stated and assumpsit. The defendant in O'Bryne, a debt collector, filed suit in California state court against the plaintiff-debtor seeking to recover a debt under various common law theories. The debtor subsequently brought ...
In Campbell v. Credit Protection Ass'n, L.P., No. 4:12CV00289AGF, 2013 WL 1282348 (E.D. Mo. Mar. 27, 2013), the Eastern District of Missouri granted summary judgment in favor of a debt collector on a debtor's claims under the Fair Debt Collection Practices Act ("FDCPA") based upon the debt collector's collection letter and credit reporting activities, holding that a debtor must come forward with evidence beyond self-serving allegations to avoid summary judgment. The defendant in Campbell, a debt collector named Credit Protection Association, sent the plaintiff-debtor a ...
In Stinson v. Receivables Management Bureau, Inc., No. 2:12-cv-02558, 2013 WL 1278966 (N.D. Ala. Mar. 26, 2013), an Alabama federal court recently held that a debt collector's telephone calls made to a non-debtor did not violate the FDCPA when the actual debtor provided the telephone number and the non-debtor plaintiff failed to inform the debt collector of the error. Plaintiff Jesse Stinson filed suit against Receivables Management Bureau, Inc. ("RMBI") alleging violations of the FDCPA and state law after RMBI made several telephone calls to his house attempting to collect a debt ...
Claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., which prohibits, among other things, companies from calling an individual's cell phone without prior consent, often involve discovery requests for call logs and call reports. Recently, a California federal court held that a defendant may be required to produce this information even in the pre-certification stages of a class action suit. In a recent case, Knutson v. Schwan's Home Service, Inc., No. 12-cv-964-GPC, 2013 WL 1222116 (S.D. Cal. Mar. 25, 2013), the parties filed a document entitled ...
In Webb et al. v. Midland Credit Management, Inc. et al., 2013 WL 1285570 (N.D. Ill. Mar. 27, 2013), the Northern District of Illinois held that a plaintiff cannot state a claim under the Fair Debt Collection Practices Act ("FDCPA") merely by alleging that a debt collector sought to collect a greater amount in a settlement letter than it sought to collect in a subsequent collection lawsuit. Rather, a plaintiff must specifically allege a factual basis for why the "inflated" amount is false, deceptive, or misleading. The plaintiffs in Webb brought a class action lawsuit under the FDCPA ...
The Florida Fourth DCA opinion in Shahar v. Green Tree Servicing, 38 Fla. L. Weekly D563d (Fla. 4th DCA March 6, 2013) demonstrates the dangers of inadequately addressing each and every affirmative defense raised by a foreclosure defendant. In Shahar, the appellate court reversed the trial court's entry of summary judgment where the lender did not factually or legally refute the defendants' unclean hands defense. The defendants' Verified Amended Answer, Affirmative Defenses and Counterclaim included allegations that the lender had engaged in a variety of inequitable and ...