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Tag Archives: FDCPA

SCOKY Drops the Ball in Unifund

Posted in FDCPA, Kentucky Law, Usury
The Kentucky Supreme Court offered a new interpretation of Kentucky’s usury statute, KRS 360.010, in a collection case involving a credit-card receivable. Unfortunately, SCOKY interpreted a statute that did not apply. Harrell, a consumer, had a credit card agreement with Citibank, N.A., a national bank with headquarters in South Dakota. The interest rate was 27.24%.… Continue Reading

Keepin’ It Classy: Court Certifies Class-Action for Alleged FDCPA Violations

Posted in FDCPA
Last week in Macy v. GC Services, the United States District Court for the Western District of Kentucky certified a class action involving the Fair Debt Collection Practices Act (“FDCPA”).  According to the plaintiffs, GC Services Limited Partnership violated the FDCPA by sending them debt collection notices which failed to specify that debt validation is only required if the… Continue Reading

We Said It Once and We’ll Say It Again – Debt Collectors Face FDCPA Liability for Filing Time-Barred Proofs of Claim

Posted in Circuit Split, FDCPA, Proof of Claim
In 2014, the Eleventh Circuit Court of Appeals released its highly-controversial opinion in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), becoming the first circuit to rule that a debt collector violates the FDCPA when it files a proof of claim in a bankruptcy case on a time-barred debt. The collection industry… Continue Reading

Debt Collectors: Remember Opposing Counsel is Not Competent

Posted in Circuit Split, FDCPA, Shameless Promotion, Stites & Harbison PLLC
Well, at least that is the case as the Eleventh Circuit rules on communications between attorneys.  Recently, I read a warning from a colleague about the expansion of liability for creditor’s lawyers under the FDCPA.  In Bishop v. Ross, Early & Bonan, P.A., the Eleventh Circuit reversed the dismissal of an FDCPA complaint brought by a homeowner… Continue Reading

But Who Cares If You Were Actually Confused? No Proof of Confusion Required for Claims Under Section 1692g of the FDCPA

Posted in FDCPA
This week the Seventh Circuit Court of Appeals ruled that claims under Section 1692g of the FDCPA can survive summary judgment, even without extrinsic proof the plaintiffs were confused by a creditor’s correspondence.  In Janetos v. Fulton Friedman & Gullace, Case No. 15-1859, 2016 U.S. App. LEXIS 6361 (7th Cir. Apr. 7, 2016), the Plaintiffs… Continue Reading

Judicial Estoppel Better than Not Being a Debt Collector

Posted in Bankruptcy Trends, FDCPA
When handling an FDCPA claim, there are many initial questions to ask.  Besides the definitional issue, it is valuable to look for prior bankruptcies.  When a debtor fails to disclose the claim on the bankruptcy schedules, judicial estoppel prevents the debtor from later asserting it.  In Jarrett v. LVNV Funding, the Western District of Kentucky… Continue Reading

Did I Forget to Turn Off the Stove? What Can Happen If You Forget to Dismiss a Settled Case

Posted in FDCPA
With the willingness of lenders to enter into loan modifications after filing a foreclosure action, there are a growing number of orphan cases remaining open on courts’ dockets.  In Kentucky, CR 77.02(2) provides for the dismissal of pending actions, after notice, if no pretrial step has been taken within the last year.  Still, that rule… Continue Reading

U.S. Supreme Court to Consider “Valid When Made” Doctrine

Posted in Circuit Split, SCOTUS
Last year, the influential Second Circuit Court of Appeals handed down a troubling, and to many banking lawyers, plainly-wrong decision in Madden v. Midland Funding LLC.[i]  In that case, Midland had bought a credit card debt originated by a Delaware national bank, attempted to enforce the debt against the borrower, and apply the 27% interest… Continue Reading

Sixth Circuit Interprets Consumer Protection Statute to Protect Non-Consumers

Posted in Circuit Split, FDCPA
In 2010, the United States Supreme Court expanded the concept of “corporate personhood” when it held in Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), that corporations can engage in political speech protected by the First Amendment. The same rationale carried over to the religious context… Continue Reading

Indiana Bankruptcy Court Sanctions Creditors For Being Bad at Math

Posted in Bankruptcy Trends, FDCPA, Proof of Claim
Adding to the apparent deluge of issues surrounding the Eleventh’s Circuit decision in Crawford v. LVNV Funding, LLC, the Bankruptcy Court for the Northern District of Indiana has sanctioned two creditors for not being able to do math.  More accurately, the Sekema court awarded sanctions of $1000 for no-showing a show-cause hearing to explain why… Continue Reading

EDKY: FDCPA Does Not Apply to Proof of Claim

Posted in FDCPA, Proof of Claim
A couple of weeks ago, Bankruptcy Judge Wise wrote an opinion holding that the Fair Debt Collection Practices Act was inapplicable to representations made in bankruptcy proofs of claim. In Mallard v. Wynn-Singer, the claimant filed a proof of claim and included a host of unredacted medical billing documents containing highly-sensitive information about the debtor’s… Continue Reading