Posts by Barron & Newburger
Minnesota and Wisconsin Fine Agency for Failure to Escheat and Individual Collectors for Failure to Give Mini-Miranda Warnings
The Minnesota Department of Commerce and the Wisconsin Department of Financial Institutions, Division of Banking have entered into their first joint consent order with a collection agency. American Accounts & Advisers, Inc. agreed to a civil penalty of $200,000 of which $125,000 will be stayed upon full completion of all action items listed in the…
Read MoreDecisions in the Third Circuit Highlight the Need for Supreme Court Review of Oliva
A line of cases developing within the Third Circuit highlights the need for the Supreme Court to grant the pending petition for a writ of Certiorari in Oliva v. Blatt, Hasenmiller, Leibsker & Moore, LLC. The crucial question to be put to the Court is whether a debt collector should be subjected to liability under…
Read MoreCollecting for a Creditor vs. Collecting for a Debt Collector?
Section 1692g of the FDCPA requires that “within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall . . . send the consumer a written notice” of the consumer’s validation rights. But how many such notices are required? Must each successive debt collector…
Read MoreNinth Circuit Rejects Creative Attempt to Defeat FDCPA Claim
A lawsuit is an asset. May a creditor execute upon a judgment against a debtor to take away the debtor’s FDCPA cause of action? The United States Court of Appeals for the Ninth Circuit has held that it may not. In Arellano v. Clark Cty. Collection Serv., No. 16-15467, 2017 U.S. App. LEXIS 23229 (9th…
Read MoreWhat’s In A Name?
On November 1, the Eleventh Circuit Court of Appeals declined to elevate form over substance, affirming a ruling from the United States District Court for the Southern District of Florida dismissing a consumer’s FDCPA claim that a law firm’s collection letter failed to identify accurately the name of the creditor to whom the debt was…
Read MoreSixth Circuit Constrains Scope of FDCPA’s Mini-Miranda Requirement
Section 1692e(11) of the Fair Debt Collection Practices Act forbids: the failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will…
Read MoreNinth Circuit Clarifies Its View of Materiality
A false statement by a debt collector must be “material” to be actionable under the FDCPA. This principle has been recognized by the United States Courts of Appeals for the Second, Third, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits. On August 18, the Ninth Circuit clarified its interpretation of materiality. In Afewerki v. Anaya Law…
Read MoreSeventh Circuit Rules That Collection Lawyers May Not Rely on Its Own Decisions
In a decision that cries out for legislative action the United States Court of Appeals for the Seventh Circuit has ruled that attorneys who collect consumer debts in the Seventh Circuit may not rely upon decisions of the Seventh Circuit in determining how they should comply with the FDCPA. The troubling en banc decision reversed…
Read MoreSecond Circuit Narrows Revocation of Consent Under the TCPA
Earlier this month, Justice Gorsuch’s opinion in Henson v. Santander Consumer USA, Inc. served as a reminder that courts should refrain from reading absent terms into clear and unambiguous statutory language. On June 22, the Second Circuit followed this directive in Reyes v. Lincoln Automotive Financial Services, and affirmed dismissal of a consumer’s claim that…
Read MoreBona Fide Error Defense Requires Reasonable, but not Foolproof, Policies and Procedures
New Jersey’s federal district court has provided a measure of comfort under circumstances that will be familiar to most debt collectors. In Gebhardt v. LJ Ross Assocs., the plaintiff’s attorney sent the defendant a certified letter stating that the plaintiff had retained counsel, and that all communications should be directed to counsel. (The letter also…
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