W.D.N.C.: Garvey v. Seterus – FDCPA Demand for Verification Limited to Statutory Requirements; Statute of Limitations for FDCPA

Summary:

Leaving aside the multiple foreclosure proceedings and subsequent appeals, Mr. Garvey eventually filed a short-lived, pro se Chapter 13 bankruptcy. Attorneys for Seterus filed a Notice of Appearance and Objection to Confirmation. Mr. Garvey then sent a demand to the attorneys, as debt collectors, pursuant to 15 U.S.C. § 1692g, provide verification under penalty of perjury to substantiate that the alleged debt was owed to Seterus and further stating that failure to comply within seven days would constitute a waiver of all claims against him.

Following the dismissal of the bankruptcy, Mr. Garvey commenced suit in federal district court, which held that, pursuant to 15 U.S.C. § 1692g(d), “a communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).” see Carlin v. Davidson Fink LLP, 852 F.3d 207, 213 (2d Cir. 2017). Further, Mr. Garvey’s unilateral mandate that the verification be “under penalty of perjury” was not supported by statute nor was his sanction of waiver of claims for untimely verification.

Mr. Garvey’s further assertion that his demand that the attorneys for Seterus cease further communications, under 15 U.S.C. § 1692c, precluded filing an pleading in bankruptcy court. The district court held this to have “no basis in logic or law.”

Other claims under the FDCPA raised by Mr. Garvey were dispensed with as outside the one-year statute of limitations, which the court held ran from the initial violation, rejecting a “continuing violation theory” in the context of the FDCPA.

Commentary:

Video of the Debtor’s arguments

For a copy of the opinion, please see:

Garvey v. Seterus – FDCPA Demand for Verification Limited to Statutory Requirements; Statute of Limitations for FDCPA

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993.

2. Juris Doctor degree from George Washington University, 1996.

Admissions to Practice of Law:

North Carolina Bar, 1996.
Federal District Courts for the Eastern and Middle Districts of North Carolina.

Specialty Certification:

North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy.

Areas of Practice:

Practice limited to consumer and business debtor bankruptcy law, 1998 to present.

Memberships:

National Association of Consumer Bankruptcy Attorneys (NACBA).
North Carolina Academy of Trial Lawyers (NCATL).
North Carolina Bar Association, Bankruptcy Section.

Lectures prepared and presented:

North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court – C.Y.A. Forms to Help ‘Gird They Loins’; 2001.
Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002.
NACBA National Convention; Topic: Efficient Office Practices; 2003.
NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004.
Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004.

Positions held:

NACBA National Convention; Convention Chair; 2008.
NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008.
NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007.
NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007.
NACBA, Member of National Board of Directors, 2006 to present.
NCATL, Chair of the Bankruptcy Section, 2003 to 2007.
NACBA, Chair of the North Carolina Section, 2003 to 2007.
NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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