Tag: fdcpa

W.D.N.C.: Deal v. Trinity Hope Associates, LLC- Default Judgment under FDCPA

 

Summary:

Default Judgment was entered in favor of Ms. Deal for violations of the FDCPA by Trinity Hope Associates, which failed to respond to the Complaint.

Commentary:

The only aspect that is interesting is that this is a 10-page opinion finding default, where the defendant did not answer.

For a copy of the opinion, please see:

Deal v. Trinity Hope Associates, LLC- Default Judgment under FDCPA Read More

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E.D.N.C.: Mungo-Craig v. Navient Solutions- Student Loan Servicer not a Debt Collector

Summary:

Ms. Mungo-Craig brought suit against Navient, first in state court and then after removal in federal district court, alleging violations of the FDCPA and North Carolina Debt Collection Act. The district court denied her motion to remand, finding that it did have federal question jurisdiction to hear claims brought under the FDCPA and supplemental jurisdiction for the other state law claims, as they arose from the same common nucleus of facts. It then granted the Motion to Dismiss brought by Navient finding that Ms. Mungo-Craig had not alleged sufficient facts and could not, in fact, show that Navient, as there was no showing that it had commenced servicing of the student loans after to default, was a “debt collector” under the FDCPA.… Read More

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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.… Read More

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4th Circuit- Conteh v. Shamrock Community Association- FDCPA Violation for Overstatement of Amount Owed

Summary:

Conteh brought suit against Shamrock and its attorney for filing a writ of execution that overstated the amount owed. The actual judgment balance was $1,583.96, but the writ of execution asserted that Conteh owed $1,748.98.

Following Powell v. Palisades Acquisition, 782 F. 3d 119 (4th Cir. 2014) the Court of Appeal reiterated that Conteh’s actual response was not the relevant standard, but instead how “the least sophisticated consumer” would have understood the overstatement. While an overstatement cannot be de minimus, a 10.4% error was sufficient.

For a copy of the opinion, please see:

Conteh v. Shamrock Community Association- FDCPA Violation for Overstatement of Amount Owed Read More

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4th Circuit: Powell v. Palisades Acquisition- Assignment of Judgment was an Action in Connection with the Collection of a Debt

Summary:

Ms. Powell incurred a credit card debt original with Direct Merchants. After losing her job, she fell into default and Platinum Financial, the assignee of the debt, obtained a judgment against Ms. Powell. Several years later, Platinum Financial sold the debt to Palisades Acquisition, whose attorney filed an Assignment of Judgment that erroneously stated the outstanding balance owed. Ms. Powell was able to have the judgment vacated due to such errors and then commenced suit against Palisades Acquisition and its attorney, asserting claims under the FDCPA for overstating the balance due in the Assignment of Judgment. The District Court granted summary judgment for Palisades Acquisition, finding that an Assignment of Judgment did not qualify as conduct taken “in connection with the collection of any debt” under 15 U.S.C.… Read More

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4th Circuit: Olson v. Midland Funding- FDCPA Statute of Limitations, Non-collection Notices, and Unsucessful Debt Collection Suits

Olson raised FDCPA claims in federal court against Midland, which had brought a debt collection action in state court. These claims were asserted within a year of when Olson first appeared in the state court debt collection action, but more than a year after the alleged violations. The 4th Circuit found that the one-year statute of limitation barred Olson’s FDCPA suit, as the Statute of Limitations ran from the violation date, especially as Olson had been on notice and participated in the state court action for longer than one year.

Olson further contended that privacy notices sent directly to him, after Midland was aware he was represented by counsel, violated § 1692c(a)(2).… Read More

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4th Circuit: Fontell v. Hassett- FDCPA and Homeowner’s Associations

Summary:

Fontell brought suit against her Homeowner’s Association (“HOA”)alleging violation of the FDCPA, the Maryland Consumer Debt Collection Act (“MCDCA”) and the Maryland Consumer Protection Act (“MCPA”). When the district court did not grant her summary judgment on these claims, she appealled.

The Court of Appeals held that her assertion that the HOA violated the MCDCA by untimely bringing suit against her was not supported by evidence sufficient as a matter of law to grant summary judgment under Rule 56(a). The property management company, as it was always responsible for collecting the homeowner’s dues and not just after there was a default, did not constitute a “debt collector” under the FDCPA, as a default “does not occur immediately upon a debt becoming due, unless the terms of the parties’ relevant agreement dictate otherwise.” See Alibrandi v.… Read More

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N.C. Court of Appeals: Hensel v. Xerox Business Services- Accord and Satisfaction of Student Loan

Summary:

Hensel had student loans of more that $90,000. In November 2012, he received two bills for late fees in the total amount of $68.28. In response, on December 9, 2012, Hensel sent XBS a check for $68.28 attached to a letter that asserted the late fees violated the FDCPA, that assessment of the late fees had harmed his ability to purchase a home, and proposing to release his claims if XBS cancelled his remaining student loans, with cashing of the $68.28 to constitute acceptance. XBS did deposit the check and Hensel eventually sought a declaratory judgment that the student loans had been settled through accord and satisfaction.… Read More

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4th Circuit: Randle v. H & P Capital- Attorney’s Fees for FDCPA Claim

Summary:

Randle brought a complaint against the Defendants for violations of the FDCPA and sought certification of her case as class action. Prior to any class certification, the Defendants settled, agreeing to pay $6,000 “in full final settlement of all her claims,” plus attorney’s fees related to her individual claims. Counsel then submitted requests for $89,083.69, which was reduced by the district court to $76,876.59. The Defendants appealled, arguing that the district court abused its discretion because the attorney’s fees awarded failed to consider the lack of success in obtaining a class claim.

The Court of Appeal rejected this argument, recognizing that while a nominal damages award bears on the propriety of fees awarded, See Farrar v.… Read More

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N.C. Court of Appeals: Saddler v. Scott Lowery Law Office- Attorney Not Subject to FDCPA or NC Collection Agency Act

Summary:

Shortly before their divorce, the Plaintiff’s then wife obtained a credit card in his name, without his knowledge. Several years later, the Plaintiff discovered the credit card on his credit report and also began to receive collection letters and calls. These ceased until there was renewed collection activity (which is not described in the opinion) starting in January 2011, in response to which the Plaintiff retained counsel to demand verification of the debt. The Plaintiff’s counsel received a packet of documents and two telephone calls from the Scott Lowery Law Office (“SLLO”), a law firm based in Colorado and Oklahoma.… Read More

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