WHAT'S IN THE NEWS - 2015

CFPB v. Clarity Services, Inc., and Timothy Ranney - Concent Order. The Bureau has identified the following law violations:

1) Respondents obtained Consumer Reports from Consumer Reporting agencies without a permissible purpose, in violation of Section 604(f) of the Fair Credit Reporting Act ("FCRA), 15 U.S.C. § 1681b(f); and

2) Clarity failed to appropriately reinvestigate consumer disputes and impermissibly pre-conditioned investigations on receipt of documentation from consumers, in violation of Section 611 of the FCRA, 15 U.S.C. § 1681i. Under Sections 1053 and 1055 of the Consumer Financial Protection Act of 2010 ("CFPA"), 12 U.S.C. §§ 5563 and 5565, the Bureau issues this Consent Order ("Consent Order").

Matrix Financial Services v Larribas ORDER ON MOTION TO VACATE FORECLOSURE DEFAULT JUDGMENT; AND DISMISSING FORECLOSURE COMPLAINT WITH PREJUDICE. In this case a judicial order for foreclosure was vacated and the case was dismissed WITH prejudice. As you read through the order take note of the false and misleading documents the Plaintiff placed on the record with the court. Pay particular attention to the affidavit of indebtedness that was signed by a clerk, with first hand knowledge, in office of the attorney for the Plaintiff. Add to all that, the Plaintiff is appealing the lower courts decision.

Scott McMahon v. LVNV Funding, LLC, No. 15-8018 (7th Cir. 2015) (This is the second appeal by the plaintiff in this case on time bared debt.) Plaintiff brought this putative class action under the Fair Debt Collection Practices Act (FDCPA), claiming that LVNV Funding, Inc. violated the FDCPA when it sought to collect or settle debts that are not legally enforceable because the statute of limitations has run. Plaintiff sought to certify a class of persons in Illinois who had received dunning letters from LVNV containing language that would mislead an unsophisticated consumer into believing that the debt was legally enforceable. The district court declined to certify the class. Plaintiff petitioned the Seventh Circuit under Fed. R. Civ. P. 23(f) for permission to appeal the district court’s decision. The Seventh Circuit vacated the order of the district court, holding that the district court denied class certification on an improper ground and raised a question worthy of immediate appeal under Rule 23(f). It would appear that the 1st appeal wasn't enough for the District Court, they had to come back to be slapped for a second time by the 7th Circuit.

Leeb v. Nationwide Credit Corp. In 2011, Nationwide Credit Corporation, a debt-collection agency - telephoned Gregory Leeb about an unpaid medical bill. Leeb mailed and faxed a letter to Nationwide disputing the debt. A few days later, Nationwide sent Leeb a letter asking him to provide additional information and instructing him to detach the upper portion of the letter and “return with payment.” The bottom portion stated that the communication was “from a debt collector attempted to collect a debt.” Leeb sued, arguing that Nationwide violated the Fair Debt Collection Practices Act (FDCPA) - which required Nationwide to “cease collection” until it verified the debt - by sending the letter. The district court granted summary judgment in favor of Leeb. The Seventh Circuit affirmed, holding (1) Nationwide’s letter, objectively viewed, was an attempt to collect the debt; and (2) Nationwide’s violation was not excused under FDCPA’s “bona fide error” provision. After 20 years and ad infinitum court decisions, they still can't get it right.

Wright v Experian. Wright sued Experian for publishing inaccurate information in his credit report. Experian via their Furnisher conducted a reasonable investigation, via the IRS, resulting in the Court finding in favor of Experian. Wright sued the wrong party. Wright should have taken action against the IRS for their failure to publish accurate information. A bogus IRS Lien was filed in the local land records, Wright disputed the lien as having been both paid and published against him personally and not the company he was a principal in. The IRS was to have withdrawn the lien, instead the IRS informed the local land records that the lien had been released, not withdrawn. The IRS published inaccurate info into the records, Experian investigated and verified the lien as having been released. Wright's attorney should have taken action against the IRS and not Experian. Be sure you have a claim against the CRA before filing an action.

Toohey v Portfolio Recovery Associates, LLC. This case was filed on October 15, 2015, within a few days after the CFPB consent order against Portfolio, and is just getting started. This case could get to be very interesting. Within the case there are 4 causes of action, FDCPA and RICO are two that stand out. This is a class action that has yet to receive class certification. It will be interesting to see what, if any, of the stipulations from the consent order will be brought to bear.

FTC/CFPB v Green Tree Servicing Consent Order. Many people are already aware that Green Tree is no longer servicing mortgages and has been replaced by DiTech. Attached is the consent order between the FTC/CFPB and Green Tree that, in part, forced the DiTech replacement. DiTech is bound by this Consent Order.

STIPULATED ORDER FOR PERMANENT
INJUNCTION AND MONETARY JUDGMENT

MONETARY JUDGMENT
A. Judgment is entered in favor of the Commission and the Bureau against Defendant in the amount of Forty Eight Million Dollars ($48,000,000) total as follows…,

PERMANENT INJUNCTION
A. Making any representation, expressly or by implication, that a consumer’s account has unpaid balances, payment due dates, interest rates, monthly payment amounts, delinquency statuses, unpaid fees, or other amounts due, unless, at the time of making the representation…,

B. Failing, after a consumer orally denies, disputes, or challenges Defendant’s claim that the consumer owes a debt or owes a debt in the amount asserted to: (i) provide the consumer orally and contemporaneously with instructions for submitting the dispute in writing; and (ii) within 14 days of the consumer disputing Defendant’s claim, provide the consumer clear and conspicuous written instructions on how to submit the dispute in writing; and... and more.

Purnell v Arrow Financial Services, LLC. Under the FDCPA stacking of the violations is not permitted, by case law. It doesn't matter if you have 1 violation or 10 violations the most that can be awarded (by case law) is $1,000. Or, is it? The Sixth Circuit Court of Appeals says that under certain circumstances you can get more. Read the case, t'is a very interesting strategy.

Leyse v Bank of America National Association. Leyse brought an action under the Telephone Consumer Protection Act after receiving a prerecorded telemarketing call on the landline he shares with his roommate. Leyse was not the intended recipient of the call — his roommate was. For this reason, the District Court dismissed the complaint for lack of statutory standing. We (3rd Circuit Court of Appeals) find that it was error for the District Court to consider the motion to dismiss, which raised an argument that could have been raised in an earlier motion to dismiss. As the procedural error was harmless, however, we reach the merits and conclude that Leyse has statutory standing. His status as a regular user of the phone line and occupant of the residence that was called brings him within the language of the Act and the zone of interests it protects. PRECEDENTIAL

FTC files Amicus Brief into 11th Circuit to re-hear Davidson v. Capital One Bank (USA), N.A.. Capital One purchased a substantial amount of HSBC credit card accounts. Within that purchase was a large quantity of defaulted accounts and judgments. Capital One was eager for the court to see Capital One as a creditor and not a debt collector, thus avoiding exposure to the FDCPA. The amicus brief in no uncertain terms told the en banc panel that they were wrong in their decision in favor of Capital One. Now waiting to hear if the court is going to succumb to Chevron Deference, or not.

Vien-Phuong Ho v. ReconTrust Co.. The 9th Circuit Court of Appeals hearing arguments on determining a Trustee in a Deed of Trust being a debt collector. The 4th Circuit has already ruled, several years ago, that a Trustee in a Deed of Trust IS a debt collector, and since that time several other circuit have joined that chorus. The 9th Circuit is now in the process of making that determination. Or so they may think. As the center seated judge on the appeals panel has asked, what about the Brand X case, what about Chevron Deference? What does the CFPB have to say; in their Amicus brief?

Galper v. JP Morgan Chase Bank, N.A., identity theft. In its ruling on Chase’s motion to dismiss, the district court held that Galper’s identity theft claims pursuant to New York’s Fair Credit Reporting Act, N.Y. Gen. Bus. L. §§ 380‐l and 380‐s, are preempted by a provision of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. We conclude that, when viewed in the light most favorable to plaintiff, the operative complaint may be read to advance a claim based on Chase’s vicarious liability for identity theft allegedly perpetrated by its employees, as distinct from any erroneous or otherwise wrongful actions by Chase in furnishing information to consumer reporting agencies. Such a claim of identity theft is not “with respect to” the responsibilities of persons who furnish information to consumer reporting agencies, and is therefore not preempted by 15 U.S.C. § 1681t(b)(1)(F). VACATED AND REMANDED

Sample Memorandum of law in support of Plaintiff's Motion for Summary Judgment under the Telephone Consumer Protection Act. This is a very tight pleading and could also be used in other kinds of non-debtor situations. There are a couple of things to keep in mind. First, the pleading would have to reflect your circumstances and facts. Second, just a reminder, this case is about a land line not a cell phone. The FCC has allowed collectors to call debtors on land lines while restricting calls to a cell phone. Since this case involves a non-debtor rather than a debtor, there can be no pre-existing relationship that would allow calls to a land line. (Be very careful if you decide to cut and paste.)

CFPB v. Chase Bank USA, NA. Chase enters into a consent order with the CFPB. The CFPB charged Chase with, but not limited to, the following:

3· Respondents sold to debt buyers certain accounts that were inaccurate, settled, discharged in bankruptcy, not owed by the consumer, or otherwise uncollectable. The debt buyers then sought to collect these inaccurate, settled, discharged, not owed, or otherwise uncollectable debts from consumers.

4· Respondents filed lawsuits and obtained judgments against consumers using deceptive affidavits and other documents that were prepared without following required procedures, because for example, they were at times signing without personal knowledge of the signer, a practice commonly referred to as "robo-signing. "

5. Respondents made certain errors calculating pre- and post-judgment fees and interest when filing debt collection lawsuits, which resulted in judgments against consumers for incorrect amounts.

6. Respondents' practices harmed consumers. Respondents subjected certain consumers to collections activity for accounts that were not theirs, in amounts that were incorrect or uncollectable. Respondents also obtained judgments against consumers using documents that were falsely sworn and that at times contained inaccurate amounts.

Aikens v Synchrony Financial. Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff's Conclusory ATDS Allegations. The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS. Here's why the Aikens complaint failed, twice!

CFPB Consent Order Encore Capital Group, Inc.. Encore, Asset Acceptance & Portfolio Recovery agree to amend their bad behavior in collecting on debts. The CFPB just entered into a Consent Order with Encore Capital concerning Encore's bad behavior in collecting alleged debts. According to the Consent Order, Encore has been engaging in collecting on data posing as debts; with little, if any, supporting documentation. Encore has purchased data sheets containing debt information about consumers credit card debt, knowing that none of the data can be considered as trustworthy. The purchase agreements state that the information is not trustworthy, and that some, if not all of the data is outside of the statute of limitations. Those are just some of the violations that the CFPB as asserted that Encore has committed. Encore is to pay $42millon to consumers, $10million in fines, and vacate $180million in suits/judgments. The effective date of the Consent Order is September 3, 2015. Portfolio Recovery entered into much the same Consent Order, involving lower dollar amounts.

Gladney v. Midland Credit Management, Inc. The FCRA and CCRAA permit a company to access a consumer’s credit report only for certain limited permissible purposes. Those permissible purposes include: credit applications by the consumer, insurance, employment, public benefits and licenses, child support enforcement, and counter-intelligence. Unless a user of a credit report has one of the listed permissible purposes, accessing the consumer’s credit report is unlawful.

On or about May 5, 2012, after receiving notice that the subject debt had been discharged in bankruptcy, defendant Midland and the Doe defendants improperly accessed plaintiff’s full credit report through Trans Union LLC, one of the three major consumer credit reporting agencies. Midland and the other defendants had no permissible purpose under the FCRA or CCRAA to access plaintiff’s credit report. Defendants did not have a valid debt collection purpose, as the supposed “debt” did not exist.

Kuhn v Asset Acceptance/Encore - RICO - Complaint. This Class Action Suit is one worth watching. Within the action, it advances that Asset never owned "the debt," rather purchased debt information, that is "data," NOT the debt; and proceeded to collect on that data, NOT the debt.

This gives rise to many questions:

U.S. v. Asset Acceptance - complaint. "Asset typically receives the portfolio account data (NOT the debt) from sellers in electronic databases. Although the data provided varies by portfolio, it typically includes the consumer account holder's name, last known address and telephone number, the account number and balance (including any interest and fees), the last payment date and/or the charge-off date, and, if known, the account holder's Social Security number. Some portfolios may include a significant number of accounts with no Social Security numbers, while other portfolios may include a significant number of accounts with inaccurate addresses. The portfolio account data does not include account documents such as contracts signed by the consumer or monthly billing statements."

"Asset Acceptance's contracts with portfolio sellers include representations and warranties regarding the validity and integrity of the account information it purchases. Such representations and warranties vary with the portfolio seller and the portfolio purchased. In some instances, however, the contracts specifically disclaim the warranties about the accuracy of the account data. For example, a contract to purchase debts from a major national retailer contains the following disclaimer: "Seller has not represented, warranted, or covenanted the number, nature, accuracy, completeness, enforceability or validity of any accounts or accounts [sic] information." In other instances, contracts may warrant the accuracy of only certain information or specify that some of the data may be inaccurate (e.g., contracts for certain telecommunications portfolios stating that the addresses in the account data may not be correct)."

Notice that this case was filed on 1/30/12 and the consent decree was entered on 1/31/12.

Hart v. FCI Lender services, Inc. When is a communication an initial communication? "Applying an objective standard to resolve the question, we decide that Hart adequately alleged that the Letter was an “initial communication . . . in connection with the collection of [a] debt,” so as to obligate FCI to provide Hart a § 1692g notice. The District Court 1 thus erred in granting FCI’s motion to dismiss. Because Hart sufficiently alleged that the Letter triggered FCI’s notice obligations, we decline to address his request to amend his complaint to add allegations regarding the Payment Statement. Accordingly, we VACATE the District Court’s judgment, and REMAND for further proceedings consistent with this opinion."

Keith Davidson v. Capital One Bank (USA), N.A., "According to the district court, whether Davidson’s debt was in default at the time it was acquired by Capital One did not bear on whether Capital One satisfied the statutory definition of “debt collector.” It further found that, to qualify as a debt collector under the FDCPA, Capital One had to “regularly” collect or attempt to collect on debts “owed or due another” or the principal purpose of Capital One’s business had to be “the collection of any debts,” see id. § 1692a(6), and Capital One did not satisfy either requirement. The district court dismissed Davidson’s amended complaint pursuant to Rule 12(b)(6) for failure to state a claim, and Davidson timely appealed." The 11th Circuit Court of Appeals affirmed lower court's findings.

Is the CFPB constitutional? A small, obscure Texas bank has filed an action in US District Court challenging the constitutionality of the CFPB and the recess appointment of its Director. The list of attorneys for the Bank is long and impressive, including some state's Attorneys General (AG's from states other than Texas have joined). The question here is; what is there about this tiny, obscure, bank that it would seek to destroy the CFPB, and how could it garner such an impressive list of attorneys? There is, it is strongly suspected, something far bigger behind this effort; having little, if anything, to do with this Bank. (You can bet that the debt collection industry is cheering this effort.)

Daniel Bock, Jr., v. Pressler & Pressler, LLP, - Amicus Brief. The CFPB has an Amicus Brief program that is available to consumers. The CFPB will file an Amicus Brief into the Circuit Court of Appeals, where they can see a substantial benefit to consumers. Herein is an example of just one such brief that they have filed into a consumer's appeal. They have rules that govern what cases they will consider filing such a brief. Check out the CFPB's Amicus Brief program here: CFPB Amicus program. What the debt collections industry thinks about this.

Midland Funding LLC v Loreto. This case is a study of both Standing and Subject Matter Jurisdiction. Even though the Debtor failed to put up a defense, the court did what it should do! The Court required that the Debt Collector and its attorney prove their case. It has been the history of lower, state, courts to not require that the plaintiff prove their case. If the defendant doesn't put on a defense then the defendant will lose by default, thus abandoning the requirement that the plaintiff prove up. This allows the court to tear through hundreds, if not thousands, of cases a week with little or no work expended. At the same time, this gives the debt collector and their attorney a virtual 100% return on their money (cost of filing a case), meaning, that they are assured a judgment in virtually 100% of the cases filed. This case demonstrates just the opposite. (p.s. There are some giggles within the judge's writings.)

Evankavitch v. Green Tree Servicing, LLC, Under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer’s debt unless the communication falls under a statutory exception. In this appeal following a jury verdict and judgment entered against a debt collector for repeated contact with third parties, we consider a matter of first impression among the Courts of Appeals: whether the burden in such a case is on the debt collector to prove or the consumer to disprove that the challenged third-party communications fit within § 1692b’s exception for acquisition of location information. We conclude that the debt collector bears that burden and will therefore affirm.

CFPB v Hanna, Ruling Motion To Dismiss, this ruling takes 70 pages of analysis to cover Hanna's motion to dismiss. Amongst the reasons Hanna motion for dismissal were that of "Safe Harbor" and "Qualified Immunity", neither of which were accepted by the Court. In fact, less than 3 weeks after deciding MILJKOVIC v DINKIN, P.A. it was cited in this ruling noting that Debt Collection Attorneys are liable for false and misleading statements made during litigation, both oral and written. This judicial ruling is of extreme value and should be read several times, all of the way through.

Goodin v Bank Of America, N.A.. This case decision should be studied. While it is easy to be dismissive of emotional distress damages, this case clearly enunciates the basis for it. I think we tend to demote the claim because of the underlying bias that the borrower has been getting a “free ride.” This case states quite clearly that the ride was neither wanted nor free. Perhaps just as importantly, the Court finds that punitive damages are appropriate in order to get the attention of Bank of America ­ such that it will stop it’s malevolent behavior. It sets the bar at deterring the bank from this behavior and not just a “cost of doing business.”

Helpful FDCPA Decisions. Some are by state and some are Federal decisions. Enjoy!

Midland Funding LLC v Brent. In a landmark ruling, this Court became the first in the country to hold that the practice of “robo-signing” affidavits in debt collection actions violates the FDCPA. The Court found that Midland generated affidavits for law firms to use in debt-collection actions by means of a computer system. “Specialists” in Midland’s litigation support department would sign between 200 and 400 of these automatically-generated affidavits per day.

King v Time Warner Cable -Summary Judgment. Plaintiff Araceli King brought this action against Defendant Time Warner Cable for violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 et seq. King alleges that Time Warner placed 163 automated or prerecorded calls to her cellular phone without her consent and seeks statutory damages of $81,500, before trebling.

U.S. District Judge Alvin Hellerstein in Manhattan ordered Time Warner Cable Inc. to make the $229,500 payment to Araceli King of Irving, Texas, citing the New York-based company's "particularly egregious" behavior as it violated the Telephone Consumer Protection Act of 1991.

Williams v Bank of America. Bank of America moved to dismiss on the grounds that the complaint parroted the elements of the TCPA rather than alleging facts that would establish a TCPA violation. Specifically, Bank of America argued that the plaintiff failed to (1) specify the telephone number it allegedly called, (2) plead facts showing that she received the calls from an ATDS, and (3) plead facts showing that it placed the alleged calls without her consent.

The Williams court disagreed. It noted that the Fourth Circuit has yet to address the question of whether Rule 8 requires plaintiffs to include their phone number in their complaints, and then rejected Strand and held that a mere “allegation that [d]efendant called her cellular telephone provides adequate notice to [d]efendant of its conduct alleged to have violated the TCPA. Defendant may obtain information regarding the telephone number it allegedly called through discovery; the phone number is not necessary to put [d]efendant on notice of its alleged conduct.”

Miljkovic v Shafritz and Dinkin P.A.. Yes, Matthew, you can sue a debt collector's attorney when he violates the FDCPA in his pleadings or oral arguments in state court. (Less than 2 weeks after this appeals court decision, it is cited in a US District Court decision.) Update July 27, 2015, the debt collection industry is in a turmoil over this decision. Debt Collection attorneys are screaming bloody murder over the unfairness of being held liable for making false and/or misleading statements during litigation (written or oral).

Amicus-Brief filed by Maryland Attorney General. Maryland Attorney General files in an Amicus Brief into Maryland Court of Appeals (this is Maryland's Supreme Court). Throughout the document the AG points out the lack of evidence in support of debts being prosecuted in Maryland's Courts by Debt Buyers. Amongst the failings are the lack of evidence that the debt hasn't been paid, hasn't been discharged in Bankruptcy, that there is a debt in the first place, that the debt is owed by the claimed debtor, that the debt is within the statute of limitations. There is isn't any real evidence being presented in court.

The main problem that can be seen here, is that the Courts are a willing participant to the fleecing of the public, if only by their failure to demand that the rules of due process are followed. The rules of evidence in particular.

Almonte v Chase Bank Mtd. Almonte was fired by Chase when she challenged the sale of debt that lacked any supporting evidence of the debt, who owed it, if it was in fact owed, or if the amount claimed was accurate.

Almonte sued for wrongful dismissal claiming Chase was defrauding the purchasers of the junk debt.

Chase responded with a motion to dismiss, explaining that the junk debt was fully exposed to the debt buyer, the debt buyer knew what they were purchasing and therefore there was no fraud. This was stated factually in their motion to dismiss and further supported with a copy of their forward flow/sales agreement with the debt buyer.

So, Chase has acknowledged, on the record, in public domain, that they sell debt knowing that they do not know if the debt is owed, by whom it is owed or if the amount is correct and lastly, with no supporting documentation to support any claims in court. Forward Flow/Sales Agreement.

Ham v NationStar. During the foreclosure case, Ham challenged standing of both Aurora Loan Services, LLC and NationStar Mortgage, LLC to foreclose. NationStar Mortgage, LLC was assigned the mortgage and was substituted as the Plaintiff during the foreclosure case. In moving forward in the case, NationStar presented to the court a witness that was a former employee of Aurora as being a competent fact witness since she was familiar with the books and records of Aurora.

Starting at Page 9 of the Florida Appeals Court Order you'll begin to see the failings of NationStar's witness to actually testify to facts that would be outside of her job and knowledge.

This is being posted here as a warning, you will begin to see more and more of this in foreclosures, Debt Buyers of Credit Card debt will also hiring former employees of original creditors to appear as competent witnesses. Their supposed competence comes from having knowledge of the practices and procedures of their former employers.

Depose, Depose, Depose!

Owen v. I.C. System, Inc. (“ICS”), a debt collection company, sued for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The district court denied Owen’s motion for summary judgment and granted ICS’s motion for summary judgment based on its affirmative defense of “bona fide error” under 15 U.S.C. § 1692k(c). Plaintiff appeals, contending that ICS did not maintain “procedures reasonably adapted to avoid” errors, as required by § 1692k(c), and thus cannot invoke the bona fide error defense as a matter of law. After review and oral argument, we reverse.

Shoup v. McCurdy & Candler, LLC, was sued alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e. The district court dismissed her complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and Shoup appeals, contending that her complaint stated a valid claim for statutory damages under the FDCPA because McCurdy & Candler’s initial communication letter falsely said that its client, Mortgage Electronic Registration Systems, Inc. (MERS), was Shoup’s “creditor.” REVERSED AND REMANDED.

Boggio v USAA Federal Savings Bank. More and more circuits are joining the fray when it comes to 1681s-2(b) and conducting a "reasonable" investigation into a Consumer's dispute of a Tradeline in a Credit Report. This time it is the 6th Circuit Court of Appeals. Simply comparing what is in the report and what the Debt Collectors data base says in not enough. The "furnisher" has to actually conduct a real investigation as is outlined in this and other cases.

Dunham v Portfolio Recovery Associates, LLC.. Just because what the debt collector sent to you may not be sufficient to meet the requirements of validation, be careful, it just may. What the Debt Collector sent in this case was a small bit of data that made all the difference in the world. Be sure to read carefully all that the debt collector does send.

Montgomery County, Pennsylvania Recorder of Deeds v. Merscorp, Inc., and Mortgage Electronic Registration Systems, Inc.. All you wanted to know about MERS but didn't know to ask. This Amicus brief came out of the Harvard Law School writings from Professors in other schools of law. This gives rise to the question, how did any MERS foreclosure case ever gain any traction or purchase in a court of law?

Gillie v Law Office of Eric A. Jones, LLC. The FDCA is a broad remedial statute, Frey v. Gangwish, 970 F.2d 1516, 1520 (1992), with limited, clearly defined exceptions. We find no justification for diluting its protection by broadly interpreting the term “officer or employee” to include independent contractors as an officer or employee of the state or state Office of the Attorney General. 6th Circuit says that a third party debt collector is NOT an "officer or employee" of the state thereby not exempt under the FDCPA.

Murphy v Midland Credit Management, Inc. et al “Factors to be considered in determining whether a credit reporting agency has conducted a reasonable investigation include: (1) whether the consumer has alerted the agency that the initial source of the information may be unreliable or if the agency knows or should know that the source is unreliable, and (2) the cost of verifying the accuracy of the source versus the possible harm of reporting inaccurate information.” Bruce, 103 F. Supp. 2d at 1143. “The determination of the 'reasonableness' of the defendant's procedures . . . is treated as a factual question even when the underlying facts are undisputed. It therefore cannot be resolved on summary judgment unless the reasonable or unreasonableness of the procedures is beyond question . . ." Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir. 2001).

Weldon v Asset Acceptance and Bowman, Heintz, Boscia & Vivian, P.C.. Continuing Violation Doctrine, when properly pled, can circumvent the FDCPA 1 year statute of limitations. It is a bit of a tight rope, great care is required.
You will notice from the Court's order, that it delayed making a decision on the Continuing Violation pleadings, giving the Plaintiff an opportunity to further develop any application of the Doctrine to this case at hand.

Holt v MRS Rule37c Violations Plaintiff moves the Court for default judgment against Defendant MRS BPO, L.L.C. ("MRS") as a sanction for withholding numerous documents it received from Sprint in response to its subpoenas. MRS has twice withheld documents in violation of Rule 37—once in October 2012, and, again, in December 2012—that would have explained crucial discrepancies in Plaintiff's cell phone records. MRS relied on these discrepancies in opposing Plaintiff's motion for summary judgment on her TCPA claims. See also: http://voidjudgements.net/inthenews15.htm#Rule37c. In this particular case, the ruling on the Rule 37(c) was to have been made during the Pre-Trial Conference. No documents are available on Pacer as to any ruling during the Pre-Trial Conference.

UDAAP For The Debt Collection Industry by William R. Bartmann, J.D. CEO, CFS II, Inc.
     "The purpose of this White Paper is to explore how the collection industry, particularly buyers of charged off consumer debt, engage in rampant abuse, deception and unfair practices that contribute to marital instability, loss of jobs, invasion of individual privacy, and the high number of personal bankruptcies."
     "This White Paper will outline a series of recommendations that, if adopted, would halt the most egregious behaviors and thus allow consumers better opportunities to make a meaningful contribution to the national economy through improved employment opportunities and more stable families."

It is not often, if ever, you come across a person or group that truly seems to be there to help people who have fallen on hard times. CFS2 appears to be one of those rare groups. Not only do they help you to negotiate your debt, they also help with locating any available public assistance, along with help in finding a job if a job is needed. If you read the biography of Mr. Bartmann, you can see that he has run the gambit of financial difficulties, well and truly beyond those most people have ever had to endure. For those who are unwilling or unable engage in the fight to vindicate their rights, this is an alternative worth looking into.

Farrell v Frederick J. Hanna & Associates. Hanna moved for Summary Judgment (this is a case for pulling a credit report when not having a permissible purpose) on the pleadings, Farrell rebutted that there was nothing on the record that would establish that Hanna any standing to demand payment or collect a debt. Most, nearly all, Debt Collectors believe that they have a permissible purpose to pull a credit report when collecting a debt. While true occasionally, most of the time it is not at all accurate. Farrell prevailed!

Johnson v MBNA America Bank, NA, and Experian Information Solutions, Incorporated; Equifax Credit Information Services, Incorporated; Trans Union LLC, Defendants. MBNA America Bank, N.A. (MBNA) appeals a judgment entered against it following a jury verdict in favor of Linda Johnson ($90,300) in her action alleging that MBNA violated a provision of the Fair Credit Reporting Act (FCRA), see 15 U.S.C.A. § 1681s-2(b)(1) (West 1998) (amended Dec.4, 2003), by failing to conduct a reasonable investigation of Johnson's dispute concerning an MBNA account appearing on her credit report. Finding no reversible error, we affirm.

Levine v World Fiancial Network National Bank, Structure, Inc. & Experian Information Solutions, Inc.. In this case, the court must decide whether Steven Levine is entitled to offer evidence in support of his claim that Experian Information Solutions, Inc. ("Experian"), a consumer reporting agency, violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. On appeal, Levine challenges the district court's order, which granted Experian's motion to dismiss his complaint for failure to state a claim. Levine's complaint alleged that Experian violated FCRA when it provided his credit report to a former creditor with whom Levine no longer had an open or active account. Levine claims that Experian did not make a reasonable effort to safeguard his confidential information and that it had reasonable grounds to believe that the request was for an impermissible purpose under the FCRA, notwithstanding the fact that the former creditor stated the report was for "account review." We REVERSE the district court's order and REMAND for proceedings consistent with this opinion.

Kaymark v Bank of America On behalf of BOA, Udren Law Offices, P.C. initiated foreclosure proceedings against Kaymark in state court. The body of the Foreclosure Complaint listed certain not-yet-incurred fees as due and owing, which Kaymark alleges violated several state and federal fair debt collection laws and breached the mortgage contract. Because we conclude that Kaymark has sufficiently pled that the disputed fees constituted actionable misrepresentation under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., we will reverse the District Court’s order dismissing certain FDCPA claims against Udren but affirm its dismissal of all other claims. Attorney's fees, inspection fees, etc. were not considered as "incurred fees".

Mains v CitiBank NA/Chase Bank NA et al. This case was filed on March 20, 2015 and is just getting started. It is a case that warrants being watched very closely. Within the Factual Alligations great pains have been taken to describe all that goes into a supposed Mortgage Backed Security and the supposed mortgages it contains. In this case the Plaintiff has described how the MSB was formed; moneys collected for the MSB and how the MSB was never funded to purchase the mortgages that were supposed to transferred into the MSB. That, it seems, never happened. It also details how the assets of WAMU were transferred, while those assets were never described with any particularity, to Chase. This raises the questions of who bought what, who owns what, who got paid the TARP and Credit Swap insurance money, who is the real servicer of the mortgages, what happened to the money collected from the debtors, and did the real holder in due course get all, or just some, of the money paid by the debtors? The plot thickens.

Mains responsive brief to Citi/Chase Motion to dismiss for failure to state a claim(highlighted), dated October 5, 2015.

Plaintiff filed a voluntary motion to dismiss October 13, 2015.

It matters not whether you are deposing or being deposed, NOLO's Deposition Handbook is a tool not to be without. It is free, download it and read it. Being forewarned is being forearmed.

Bersaw v Northland Group Debt Collectors almost never have a permissible purpose to obtain the credit report of an alleged debtor. This fact is borne out of both the FCRA and Electronic Funds Transfer Act which define the word "account." The judge's order and findings draw from an article by THGA titled "Fatal Flaw." The article points out what the Law ACTUALLY says and not what others have concluded from mis-leading pleadings of the past.

James v Encore Capital Group, Inc. Hot! Hot! Hot! It is strongly suggested that you read the Brim v. Midland case in addition to reading this case, James v. Encore. Brim sets the ground work for this case, by and through the discovery made during the Brim case. IF EVER YOU WANTED TO KNOW WHY VIRTUALLY NO ALLEGED DEBTOR STOOD A "CHANCE IN HELL" OF WINNING IN STATE COURT, THIS WILL EXPLAIN AND GIVE THE REASONS WHY. This case was skillfully built on top of information extracted from the Brim Case. Within the complaint is a cause of action for 18 U.S.C. 1961 (extortion), a.k.a. civil RICO. Also included is the transcript from a Motions Hearing. It may take several readings to fully understand what is actually going on during the Motions Hearing.

Holm v Wells Fargo Home Mortgage & FREDDIE MAC. Wrongful foreclosure. Damages awarded to Plaintiff Holm for more that 3Mil Dollars, against Wells Fargo, and granted quiet title to Plaintiff Holm against FREDDIE MAC. Wells Fargo showed no remorse for their bad behavior as demonstrated by representative who was quoted as saying "I am not here as a human being. I am here as a representative of Wells Fargo."

So much for "show me the note" argument, so much for the wet ink signature on that mortgage and note that they claim is yours. With this device you could find yourself liable purchases or contracts you never signed.

Collins v Experian Information Solutions, Inc. 11th Circuit Court of Appeals on 1-5-2015 delivered this opinion, Consumer Not Required to Notify Third Party of Error to Recover from CRA for Failure to Properly Investigate.

"Looking to the plain language of the FCRA, we are convinced that a consumer’s credit report need not be published to a third party in order to entitle the consumer to actual damages under § 1681i(a), and we reverse the district court’s finding to the contrary."

Glover v Elliott PC One Judges opinion on Affirmative Defenses in a FDCPA case. Below taken from his Opinion.
"..broad affirmative defenses such as waiver, estoppel, or unclean hands may be stricken where these defenses are alleged in conclusory fashion without any factual basis, thereby depriving plaintiff a fair notice of the grounds upon which the defense rests." See Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004).
"Defendant’s answer in the present case appears especially vulnerable to a motion to strike. In a simple lawsuit involving a single collection letter, defendant has alleged eighteen separate affirmative defenses. This method of pleading everything, “including the kitchen sink,” displays a lack of care, deliberation, and professionalism on the part of counsel engaging in such conduct."

Buyer of For-Profit Schools to Forgive $480M in Student Debt. The Consumer Financial Protection Bureau and the U.S. Department of Education announced Tuesday more than $480 million in forgiveness for borrowers who took out Corinthian College’s high-cost private student loans.
The CFPB sued Corinthian Colleges Inc. in September for luring tens of thousands of students to take out private loans, known as "Genesis loans," to cover expensive tuition costs by advertising bogus job prospects and career services.

Liability for FDCPA Violations and Exposure to State Bar Discipline in Consumer Debt Collection Practice in 2011 Chapter 11. McCollough v. Johnson, Rodenberg & Lauinger, LLC – Increased FDCPA Liability Exposure for Attorneys. CASE FOR LAWYER LIABLITY - Ethics and Liability in Debt Collection Litigation in 2011.

Brim v Midland Credit Management, Inc., The transcript of the actual trial proceedings in Brim v. MCM is long yet well worth reading. This is a FCRA action over Reasonable Investigation, when the information within a credit report is disputed and the furnisher is mandated to conduct a reasonable investigation, and not merely parrot what they have already reported, which is in dispute. In spite of what may be a more popular opinion on the part of debt buyers/collectors, the duty to reinvestigate rests with the furnisher and the Credit Reporting Agency and is not the duty of person about whom the report is made. Part 1, Part 2, Part 3, Part 4 Catalog-Highlighted Transcript

Spencer v Kohl's Docket, In the recent past, debt buyers/collectors being sued under the TCPA have filed motions to stay discover or proceedings until the FCC has delivered its ruling defining "called party." This definition has been under consideration by the FCC for a year now and courts are beginning to remove previously applied stays or as in this case deny motions for stays.

Portfolio Recovery v King, be careful shopping a venue for better statute of limitations, it can blow up in your face, such as this case nearly did.

The Duty to Disclose: Rule 37(c) and Self-Executing Sanctions. Litigants would be well advised to disclose all potential evidence and to supplement all required disclosures and discovery responses to avoid the possibility of having their evidence excluded. On the other hand, for litigants who have been prejudiced by their opponents’ failure to disclose, Rule 37(c) offers a remedy to offset the disadvantage of unfair surprise (or ambush).

The rule is said to be automatic, or self-executing, because a court may exclude undisclosed evidence even if no motion to compel has been brought. There is no meet-and-confer requirement prior to bringing a motion to exclude evidence under Rule 37(c).

UNANIMOUS SCOTUS: TILA Rescission Effective on Notice: No Borrower Lawsuit Required. The three year statute of limitations applies to notice — not a lawsuit filed by borrower. The burden is on the lender to contest the rescission and failing to do so within the 20 days (the time varies depending upon when you sent your notice of rescission) the deal is over.

What you have left is an unsecured debt that can be discharged in bankruptcy because TILA says the mortgage is gone. What effect this will have on the thousands of cases in which borrowers sent notices of rescission and were foreclosed remains to be seen, but it sure will be interesting to see what the courts do. More:

Buchanan v Northland Group The case involved a challenge to a collection letter offering to settle a debt subject to the statute of limitations. At issue in the appeal was a district court's decision that a debt collector does not mislead a consumer, and thus doesn't violate the FDCPA, by offering debt collection settlement without disclosing that the statute of limitations for filing a lawsuit has expired.

The Sixth Circuit ruled that a settlement offer to resolve an unpaid debt at a discount without disclosing that the statute of limitations had expired could mislead a "reasonable unsophisticated consumer" into thinking the debt is enforceable in court. More:

Mey v Frontier Communications Corp.. Mey filed a complaint against Frontier and simultaneously moved for class certification. Two months later, Frontier wrote to Mey and offered to settle her claims with a payment of $6,400 plus taxable costs and entry of prospective injunctive relief. Mey declined. Frontier then moved to dismiss, arguing that the court lacked subject matter jurisdiction because Frontier’s offer had “mooted Ms. Mey’s individual claim and all potential class claims.”

The court denied that motion. It began by drawing a distinction between an “offer to settle” and an “offer of judgment,” and concluded that the former will not moot a Plaintiff’s claims.

Collins v Experian Information Solutions, INC.. "consumer report", "file", "reasonable investigation" all come to bear to determine liability on the part of a CRA in conducting, or failing to conduct, a reasonable investigation when a credit report contains inaccurate information and that information is disputed in writing with proof of dispute (sent via certified mail).

¹The dates expressed are not the dates of the case, rather the date that the case was posted to this web site. Many cases are not published and are frequently/only found within other cases that are published.

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