Debt collectors seeking to avoid liability under the bona fide error exception of the federal Fair Debt Collection Practices Act (FDCPA) will not be excused from liability if the conduct at issue was intentionally undertaken. That is the ruling from the Seventh Circuit Court of Appeals in Leeb v. Nationwide Credit Corporation. Mark Leeb received a telephone call and letter from Nationwide seeking payment for an unpaid medical debt. Leeb wrote Nationwide stating he did not owe the debt because it was payable by his health insurance. He also requested Nationwide provide him verification of the debt under section 1692g(b) of…
Posts published by “Donald Maurice”
Donald Maurice provides counsel to the financial services industry, successfully litigating matters in state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. He is outside counsel to RMAI and serves as chair of the New York City Bar Association’s Consumer Affairs Committee. He is a regent of the American College of Consumer Financial Services Lawyers and a fellow of the ABA’s American Bar Foundation. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee. He has been named to Thomson Reuters’ list of New Jersey Super Lawyers and is peer-rated AV Preeminent by Martindale-Hubbell, the worldwide guide to lawyers. For more information, see https://mauricewutscher.com/attorneys/donald-maurice/
The Consumer Financial Protection Bureau’s latest edition of Supervisory Highlights was released last week. I expected some stinging comments directed at debt collectors and debt buyers, given the recent consent decrees. What I found was the opposite. The 45-page report devoted only three paragraphs to supervised ARM entities. And, what was reported only indicates the potential for regulatory violation and did not note any instance where a consumer was actually harmed. Communications with Consumers Here the Bureau looked at supervised entities’ compliance with section 1692c of the Fair Debt Collection Practices Act. The CFPB’s beef here was that ARM companies had…
Yesterday’s oral argument before the U.S. Supreme Court in Spokeo v. Robins suggests a struggle to fashion an understanding of what can constitute an “injury in fact.” It pitted the issue of whether a plaintiff’s standing to sue requires a tangible, concrete injury (loss of money, a job or property right) against the concept that the law can identify a “harm” (in this case, inaccurate information in a credit report) which itself is a real injury. Finding the Injury Spokeo v. Robins concerns an alleged violation of the Fair Credit Reporting Act. Robins claimed Spokeo compiled a report about him that contained false information…
In an Oct. 23 ruling, the Third Circuit Court of Appeals offered a mixed opinion that has the effect of both limiting and expanding the interpretation of automatic telephone dialing systems (ATDS), which can trigger a claim under the federal Telephone Consumer Protection Act. While the ruling poses increased risk for businesses that use dialers to contact customers, it also offers guidance on what can be done to reduce that risk. The opinion, Dominiguez, et. al v. Yahoo, Inc., is not precedential, meaning courts within the Third Circuit (New Jersey, Delaware, Pennsylvania and U.S. Virgin Islands) are not obligated to follow…
Three consent decrees issued over the past few months present clear challenges for the debt buying industry, creditors and companies that provide services to them. The first, between the Consumer Financial Protection Bureau and JP Morgan Chase Bank, contained an agreement altering the bank’s debt collection activities. The bank also agreed that any debt sold by it would contain a restriction prohibiting resale by the subsequent purchaser. More specifically, and among other things, the Chase Bank Consent Order (copy available here) requires Chase to do the following: Stop selling loans and other debts that: (1) were discharged in Chapter 7 bankruptcy; …
Earlier this summer we explained here that the Third Circuit’s decision in Kaymark spelled Fair Debt Collection Practices Act trouble for mortgage lenders and servicers who make statements seeking to recover estimated fees and costs. We examined these risks in a recent webinar as well. In Beard v. Ocwen, a federal district court, citing Kaymark, recently held a mortgage servicer liable under the FDCPA for a reinstatement letter made by its foreclosure counsel, which included fees and costs that had not been incurred. Word Placement Matters When Describing ‘Anticipated’ Fees Jaynie Beard defaulted on her mortgage loan. Following the default, the mortgage loan’s…
National financial services law firm Maurice Wutscher LLP has opened a new office in Boston, hiring financial services attorney Brady Hermann to lead the firm’s Massachusetts litigation matters. This brings the number of offices of Maurice Wutscher LLP to 12. Hermann will practice in the firm’s Commercial Litigation and Consumer Credit Litigation groups, joining Maurice Wutscher’s skilled team of 26 attorneys focused on defense of the financial services industry in offices throughout the United States. In addition to Boston, Maurice Wutscher has offices in Austin, Chicago, Cincinnati, Flemington, Indianapolis, Miami, New York, Philadelphia, San Diego, San Francisco and Washington, DC.…
Furnishing information during and after a consumer bankruptcy is a complex task, and implicates the Bankruptcy Code, Fair Credit Reporting Act and Fair Debt Collection Practices Act. Recent litigation suggests that both the content and the timing of the furnished information poses unique risk to the credit and collections industry. And a recent string of lawsuits is raising the stakes on information furnished prior to bankruptcy. On Aug. 19 at 2 p.m. Eastern, we will offer our take on the top issues coming out of recent decisions and what you can do to contain risk and enhance your credit reporting…
National financial services law firm Maurice Wutscher LLP has opened its 11th office, hiring financial services attorney Eric Rosenkoetter to lead the firm’s Texas litigation matters in its new Austin office. Rosenkoetter will practice in the firm’s Commercial Litigation, Consumer Credit Litigation and Regulatory Compliance groups, joining Maurice Wutscher’s skilled team of 25 attorneys focused on defense of the financial services industry in offices throughout the United States. In addition to Austin, Maurice Wutscher has offices in Chicago, Cincinnati, Flemington, Indianapolis, Miami, New York, Philadelphia, San Diego, San Francisco and Washington, DC. Rosenkoetter has substantial experience as a litigation attorney…
A QR code visible on the face of an envelope embedded with an account number violates the Fair Debt Collection Practices Act, according to a recent decision from the United States District Court for the Middle District of Pennsylvania. A QR or “Quick Response” code is a type of bar code that can contain any sort of information. But the information is not visible, instead the QR code looks more like a jumble of black and white lines or boxes. You can’t do much with a QR code unless you have a device that can read the code. QR Codes…
A recent decision found there’s a difference between advertising and telemarketing messages under the TCPA and that difference may have created a horror story for one movie promoter under the decision from the Eighth Circuit Court of Appeals. “Liberty. This is a public survey call. We may call back later,” was the prerecorded message left twice on the voicemails of plaintiffs Ron and Dorit Golan. The calls, if answered, would have also played a 45-second scripted message that included a survey and promotional material about the movie. However, because the plaintiffs did not answer the calls, they only heard the short message regarding…
Yesterday I commented on a recent decision from the Eleventh Circuit Court of Appeals, Miljkovic v. Shafritz and Dinkin, P.A. et al., noting it spelled trouble for attorneys engaged in debt collection. Miljkovic incorrectly construes the Fair Debt Collection Practices Act and its legislative history as well as two U.S. Supreme Court cases, to arrive at the mistaken conclusion that attorney litigation activity is regulated by the FDCPA, except for one minor exemption. Hours later, a trial court sitting in the Eleventh Circuit handed down a decision in CFPB v. Frederick J. Hanna & Associates, P.C., et al., which allows the Consumer Financial Protection…