Effective, Experienced, Exceptional.

CEB Prac. Guide § 2A.03 -- Statutory Background and Pre-emption -- Relationship between the State and Federal FDCPA and the Federal Bankruptcy Code

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

In Carter v. Richland Holdings, No. 2:16-cv-02967-RFB-VCF, 2019 U.S. Dist. LEXIS 168010, at *12-15 (D. Nev. Sep. 30, 2019), the District Court granted summary judgment against an FDCPA Plaintiff. AcctCorp argues that it was not reporting the debt in connection to an attempt to collect the debt pursuant to 15 U.S.C. § 1692e, but to comply with the Fair Credit… Read More

In Scally v. Ditech Financial, LLC, 2017 WL 371996, at *5–6 (S.D.Cal., 2017), Judge Hayes dismissed an FDCPA class action arising out of collection of discharged debt. In this case, the first amended complaint alleges that Defendant sent letters to the Plaintiff attempting to collect on a discharged debt which contain various statements “falsely implying that the debt remained viable.”… Read More

In Owen v. LNV Funding, LLC, 2016 WL 4207965, at *3 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit found nothing inherently deceptive about filing stale proofs of claims in bankruptcy court. Thus, the Bankruptcy Code contemplates that creditors will file proofs of claim for unenforceable debts—including stale debts—and that the bankruptcy court will disallow those claims upon the… Read More

In Nelson v. Midland Credit Management, Inc., 2016 WL 3672073, at *2 (8th Cir. 2016), the Court of Appeals for the Eight Circuit disagreed with the 11th Circuit's Crawford decision on the actionability under the FDCPA of filing time-barred proofs of claim. Nelson urges this court to follow the Eleventh Circuit and extend to bankruptcy claims the rule against actual… Read More

In Garfield v. Ocwen Loan Servicing, LLC, 2016 WL 26631, at *2-3 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit said that FDCPA claims grounded in post-discharge misconduct are independent of the bankruptcy code. Where, as in this case, the later statute is the Bankruptcy Code, a distinction must be made between claims brought under the earlier statute during the… Read More

In Slaughter v. LVNV Funding, LLC, 2015 WL 627954 (N.D.Ala. 2015), Judge Bowdre found that an FDCPA claim arising from the defendant’s filing Proofs of Claim on expired debt remained a “core” proceding under Crawford and the reference to the bankruptcy court should not be withdrawn Given the court's determination that the FDCPA claim is inextricably related to the bankruptcy… Read More

In Patrick v. Pyod, LLC,--- F.Supp.2d ----, 2014 WL 4100414 (S.D.Ind.. 2014), Judge Young held that filing a proof of claim in bankruptcy court on time-barred debt violates the FDCPA. The Eleventh Circuit recently decided a case nearly identical to the one before the court. See Crawfrod v. LVNV Funding, LLC, No. 13–12389, 2014 WL 3361226 (11th Cir. Jul. 10,… Read More

In Crawford v. Franklin Credit Management Corp., --- F.3d ----, 2014 WL 3377175 (2d Cir. 2014), the Court of Appeals for the Second Circuit held that that a Plaintiff who had filed Chapter 13 bankruptcy lost standing when she filed the Petition, but regained standing when she dismissed the Petition. We conclude that Crawford has standing to pursue her present claims because her… Read More

In Crawford v. LVNV Funding, LLC, --- F.3d ----, 2014 WL 3361226 (11th Cir. 2014), when the 11th Circuit sets it put this way, you pretty much know how its coming down. A deluge has swept through U.S. bankruptcy courts of late. Consumer debt buyers—armed with hundreds of delinquent accounts purchased from creditors—are filing proofs of claim on debts deemed unenforceable under… Read More

1 2