Thursday, May 31, 2012
Defendant was not a "debt collector" under the FDCPA
Fair Credit Billing Act
The Fair Credit Billing Act (FCBA) was passed to protect consumers from unfair billing practices, such as being billed for merchandise that was never received or failure to post credits in a timely manner. It also sets a consumer's responsibility for unauthorized charges or ways to seek clarification of items on a bill.
Supreme Court Grants Certiorari in FDCPA Case on Awarding Costs
Wednesday, May 30, 2012
Calling debtor at home and at work 82 times attempting to collect debt is not harassment
Tuesday, May 29, 2012
Post Discharge Collection Activities
Many debtors who file for bankruptcy and obtain a discharge still receive collection letters or calls from creditors. This is a clear violation of the FDCPA. It is anticipated that most debt collectors will claim as a defense to a FDCPA that the collection activities were a result of a bona fide error in that they had no actual knowledge of the bankruptcy.
In Bacelli v. MFB, Inc., 729 F. Supp. 2d 1328 (M.D. Fla. 2010), the debt collector claimed that it had no actual knowledge of the debtor's bankruptcy which fact was undisputed. However, the Court denied summary judgment on the bona fide error defense because the debt collector/defendant presented no evidence of an agreement or understanding with the original creditor that it would not to refer accounts in bankruptcy and no evidence that its reliance on the original creditor had proved effective in avoiding errors in the past. Lastly, the Court stated that the debt collector/defendant presented no evidence whatsoever to show that its reliance on the original creditor about knowledge of the plaintiff's bankruptcy discharge was reasonable.
Emotional damages under the FDCPA
Wednesday, May 16, 2012
Can you sue for mistakes in collection letters?
The Jerman plaintiff debtor contended that the collection attorney violated the FDCPA by imposing a requirement that the debtor dispute the debt in writing, when the FDCPA required only that the debtor dispute the debt and did not specify that it be in writing. Observing that authority was split on the issue, the district court ultimately agreed with the plaintiff debtor that this writing requirement in the collection attorney’s notice letter constituted an FDCPA violation. ). In a later proceeding, however, the district court held that the collection attorney was entitled to the bona fide error defense.
The Supreme Court ruled that the FDCPA’s bona fide error defense does not encompass mistakes of law or misinterpretations of the requirements of the Act itself. Instead, the seven-member majority concluded that § 1692k(c)’s requirement that debt collectors maintain procedures reasonably adapted to avoid any bona fide errors referred only to measures designed to avoid errors like clerical or factual mistakes.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. , 130 S. Ct. 1605, 176 L. Ed. 2d 519 (2010).