This note discusses the circuit split that is found regarding whether the FDCPA applies to communications from a debt collector to a debtor's attorney between the Third, Fourth, Seventh and Tenth Circuits.
Blog posts
By Ed Boltz, 7 November, 2011
Abstract:
This two part article is an exchange between Prof. Melissa Jacoby and Prof. Anna Gelpern examines the challenge of consumer financial protection and its implications for financial stability. Jacoby illustrates how the channels of production of formal law (non-uniform state law, uniform state law, federal law) fail to coherently reflect the functions of ex post consumer debtor protection. Channels of production shape the market for the services of lawyers and other intermediaries.
By Ed Boltz, 7 November, 2011
Abstract:
This article was written for the Federal Judicial Center's annual symposium for bankruptcy judges. It examines the practical implications of the intersection of the Bankruptcy Code and DOMA. While states provide same-sex couples some or all of the rights and obligations of marriage including those related to creditor-debtor relationships, DOMA prohibits federal courts from recognizing those unions and attendant rights when applying federal law.
By Ed Boltz, 7 November, 2011
Bobby Stanley, now deceased, borrowed $300,000 from the Plaintiff. Following his death, Yow took responsibility for the debt and the Plaintiff agreed to have the original note marked as satisfied and cancelled.
The Court of Appeals held that this was sufficient under N.C. Gen. Stat § 25-3-604 to show the debt was satisfied.
Lewis v Stanley.PDF
By Ed Boltz, 7 November, 2011
Robert and Octavia Jones filed a joint income tax return for the year 2000. After they legally separated, the IRS audited the return and assessed a deficiency, which Robert Jones agreed to discharge through an installment payment plan. When he defaulted, however, the IRS began efforts to collect the deficiency from both Robert and Octavia Jones. More than two years after the IRS first began its collection activities, Octavia Jones requested innocent spouse relief from her tax liability under I.R.C. § 6015(f).
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The sole question presented is whether I.R.C.
By Ed Boltz, 7 November, 2011
The Fourth Circuit reversed the denial of attorneys fees by the District Court, finding that while only nominal actual damages were awarded, attorneys fees were still allowed.
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The Court of Appeals held that while Farrar v. Hobby, 506 U.S. 103 (1992) and Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005) held that when a Plaintiff "received only nominal damages, 'the only reasonable fee is . . . no fee at all.'” Quotiing Farrar, 506 U.S.
By Ed Boltz, 7 November, 2011
As the  FDCPA is concerned “with the substance of the transaction as opposed to the form”, the 4th Circuit held that even assuming that the original 2004 debt was a commercial loan, the later 2006 debt, used to satisfy the original obligation, was a consumer loan as it concerned the Plaintiff's personal finances, his personal residence, and was taken out in his own name.
This case may also have value in determining whether a debtor "debts are primarily consumer debts" under 11 U.S.C.
By Ed Boltz, 7 November, 2011
11 U.S.C. § 507(a)(4) places as the 4th priority "allowed unsecured claims, but only to the extent of $10,950 for each individual . . . earned within 180 days before the date of the filing of the petition. . . for (A) wages, salaries, or commissions, including vacation, severance, and sick leave pay earned by an individual." 11 U.S.C.
By Ed Boltz, 7 November, 2011
The Fourth Circuit Court of Appeals held that "the Code plainly provides" that a debtor does not have to actually claim an exemption in order to use Code section 522(f) to avoid a judicial lien that impairs the exemption.
By Ed Boltz, 7 November, 2011
Real Property was owned by Walter Davis and his wife, Shelvia Davis, as tenants by the entireties. Deed of Trust listed "Walter Davis, A Married Man" as the grantor, but Shelvia Davis was both present at the closing and had signed and/or initialed several of the documents.
The Court of Appeals held that while Wachovia had failed to provide timely notice of the hearing on a Motion for Summary Judgment, the Davis's, who appeared pro se, had proper notice of the motion itself and being present at the hearing had not show any evidence of prejudice in not receivi