Appellate Practice
Supreme Court Rules that an Ambiguous Agreement Cannot Be a Basis to Compel Class Arbitration
In Stolt-Nielsen S. A. v. Animal Feeds Int’l Corp., the Supreme Court held in 2010 that a court may not compel arbitration on a class-wide basis when an agreement is “silent” on the availability of class arbitration. The court recognized in Stolt and later cases that class arbitration fundamentally changes the nature of the “traditional…
Read MoreSeventh Circuit Vacates Fee Award Based on Mootness
The United States Court of Appeals for the Seventh Circuit has vacated an award of over $70,000 in fees and costs to a prevailing plaintiff in an FDCPA case. In Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, the plaintiff sued a law firm and its debt-buyer client for filing suit in the wrong venue…
Read MoreSupreme Court Rejects Discovery Rule in FDCPA Cases
The United States Supreme Court has affirmed the Third Circuit Court of Appeals’ decision in Rotkiske v. Klemm, holding that Section 1692k(d) of the FDCPA “unambiguously sets the date of the violation as the event that starts the one-year limitations period.” The decision overrules cases from multiple circuits that have allowed application of the “discovery…
Read MoreSupreme Court Provides Harsh Lesson on the Importance of a Writing
Bankruptcy is intended to allow an honest but unfortunate debtor to obtain a fresh start. In order to keep dishonest debtors from abusing the process, Congress has defined a class of debts which cannot be discharged in a bankruptcy proceeding. One of the common exceptions to discharge is debts incurred through fraud. However, the Bankruptcy…
Read MoreSixth Circuit Dismisses FDCPA Claims for Lack of Article III Standing
Holding that “Congress cannot override [the] baseline requirement of Article III of the U.S. Constitution by labeling the violation of any requirement of a statute a cognizable injury,” the U.S. Court of Appeals for the Sixth Circuit has ordered dismissal of an FDCPA suit predicated upon a letter’s lack of a “mini-Miranda” warning for lack…
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 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 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 MoreHenson v. Santander: For Debt Buyers, Neither Smoke Nor Fire
In his debut opinion, Justice Neil M. Gorsuch wrote for a unanimous United States Supreme Court, holding that banks and financial companies that purchase and collect defaulted debt are not “debt collectors” under the Fair Debt Collection Practices Act. At first blush, the Court’s affirmance of the Fourth Circuit’s holding in Henson, et. al. v.…
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