Eleventh Circuit Throws Out FDCPA Complaint On Grounds of Judicial Estoppel

FDCPA

On March 31, U.S. Court of Appeals in the 11^th Circuit concluded that the district court properly dismissed plaintiff’s FDCPA complaint, using the concept of judicial estoppel.   Ward v. AMS Servicing, LLC, 2015 WL 1432982 (11th Cir. Mar.31, 2015). In this case, the court addressed whether the Defendant was incorrect in charging the Plaintiff a monthly mortgage amount agreed to in a consent order, rather than the amount stipulated in the Note. In November 2013, the Plaintiff filed suit in the district court, alleging that Defendant violated the FDCPA by falsely representing the amount of her monthly mortgage payments.  In June 2009, the Plaintiff and the original servicer of her loan entered into a loan modification for her home where she agreed that her monthly payment would be $1,182.89.  Thereafter, the loan was sold with the Defendant acting as the new servicer.  Subsequently, the Plaintiff fell behind on her loan and sought Chapter 13 bankruptcy protection.  As a result, the mortgage holder sought to modify the automatic stay to allow it to foreclose on the property.  In order to resolve the matter, the parties entered into a consent order, signed by the bankruptcy court, which provided that, in order to cure the arrearage, the Plaintiff’s monthly payment would rise to $1,319.50 from September 1, 2012 through May 1, 2013, but regular payments would resume once the arrearage had been paid.  Despite the consent order, Plaintiff argued in district court and on appeal that Defendant violated FDCPA by charging the higher amount. The court concluded that Plaintiff’s challenge to the amount of the monthly mortgage payment was barred by judicial estoppel (e.g., “meant to prevent litigants from deliberately changing positions after the fact to gain an unfair advantage”), as Plaintiff would have gained an unfair advantage if allowed to proceed with the FDCPA suit since Defendant was convinced not to proceed with foreclosure in return for Defendant’s express agreement to pay $1,319.50 until her mortgage was current.  For these reasons, the court affirmed a lower court’s dismissal of the Plaintiff’s civil suit against the Defendant.