Financial Services
What’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…
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.…
Read MoreRegulatory Litigation and Operational Lessons
The CFPB recently issued its annual report on the Fair Debt Collection Practices Act. This report contains the thoughts of the CFPB and FTC enforcement actions which point to legal and operational issues in need of resolution by industry players who wish to stay ahead of the enforcement trends of the industries regulators. Reviewing the…
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