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CEB Prac. Guide § 2A.34 -- Communications with the Debtor -- False or Misleading Representations

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In Johnson v. Enhanced Recovery Company, LLC., 2018 WL 2057798, at *2–3 (N.D.Ind., 2018), Judge Simon certified an FDCPA class action over the defendant's objection. ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be… Read More

In Evans v. Portfolio Recovery Associates, LLC, 2018 WL 2035315, at *5–7 (C.A.7 (Ill.), 2018), the Court of Appeals for the Seventh Circuit held that a debt collector violates the FDCPA when the debt collector receives an (untimely) dispute from a debtor in response to a 30-day validation letter and thereafter reports the account to a consumer reporting agency without reporting… Read More

In Hill v. Accounts Receivable Services, LLC, 2018 WL 1864720, at *1–2 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit joined other circuits to adopt a materiality standard for 1692e claims and also rejected the "ipso facto" rule for debt collectors who lose debt collection litigation. In Hahn v. Triumph Partnerships LLC, 557 F.3d 755 (7th Cir. 2009),… Read More

In Echlin v. PeaceHealth, 2018 WL 1801582, at *5–6 (C.A.9 (Wash.), 2018), the Court of Appeals for the Ninth Circuit held that a debt collector who engaged meaningfully in the debt collection process did not engage in “flat rating”. Echlin primarily argues that CCI did not meaningfully participate in the attempts to collect her debts because CCI did not engage… Read More

In CFPB v. Weltman, Weinberg & Reid, Co., 2018 WL 1709408, at *3 (N.D.Ohio, 2018), Judge Nugent denied the CFPB’s and a debt collection law firm’s motions for summary judgment as to whether the law firm had meaningful involvement in the collection of the debts. Interestingly, the law firm defended the CFPB’s MSJ on the basis that the law firm… Read More

In Tatis v. Allied Interstate, LLC., 2018 WL 818004, at *3 (C.A.3 (N.J.), 2018), the Court of Appeals for the Third Circuit held that a letter that offered to "settle" a time-barred debt could be deceptive. Thus, Huertas stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so… Read More

In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling. As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on… Read More

In Lindblom v. Santander Consumer USA Inc., 2018 WL 500347, at *6–7 (E.D.Cal., 2018), Magistrate Judge McAuliffe denied an automobile finance company's summary judgment in a class action complaining that its SpeedPay program violated the Rosenthal Act. Defendant does not contend that the Speedpay fee is written or otherwise expressly authorized in the Contract. Rather, Defendant concedes that Contract is… Read More

In Powell v. Aldous & Associates, P.L.L.C., 2018 WL 278736, at *7–8 (D.N.J., 2018), Judge McNulty dismissed an FDCPA class action based on a letter that allegedly falsely threatened legal action.  Judge McNulty found that the letter did no such thing. Powell claims that the Aldous letter threatens legal action in violation of Section 1692e(5). In that respect, he argues, this… Read More

In Muharemovic v. Client Services, Inc., 2017 WL 6316827, at *4 (E.D.Mo., 2017), the District Court granted in part and denied in part a debt collector's letters that were challenged as falsely threatening litigation.  The letters stated that "If we are unable to arrange repayment, Capital One will send your account to an attorney in your state for possible legal action. Please… Read More

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