InfoBytes Blog

Illinois appellate court affirms dismissal of consumer counterclaims in credit card action

On April 12, the Appellate Court of Illinois published an opinion affirming the dismissal of a consumer’s counterclaims against a lender in a lawsuit seeking to collect the consumer’s alleged debt from a store credit card. According to the opinion, in January 2017, the lender filed a small claims action seeking to collect credit card debt on which the consumer allegedly defaulted in July 2012. The consumer filed a putative class action counterclaim against the lender alleging, among other things, that the lender’s collection action violated the FDCPA and various Illinois laws because it was time-barred under the four-year statute of limitations period provided to enforce a sale of goods under Section 2-725 of the UCC. The lender moved to dismiss the counterclaims, alleging that its complaint was timely filed within the five-year statute of limitations period applicable to credit card agreements under Section 13-205 of the Illinois Code of Civil Procedure. The lower court granted the lender’s motion to dismiss, holding that the credit card agreement was governed by the five-year statute of limitations applicable to credit card agreements under Section 13-205 of the Illinois Code of Civil Procedure, rather than the four-year statute of limitations under the UCC’s sale of goods provisions. On appeal, the appellate court affirmed the lower court’s decision, rejecting the consumer’s argument that the UCC should apply to the agreement because the consumer could only use the credit card to purchase goods at a single retailer. Specifically, the appellate court held that the type of credit card was immaterial to the analysis and that Section 13-205 of the Illinois Code of Civil Procedure clearly controlled in this case because a tripartite relationship existed among the bank, the cardholder, and the merchant, and the payments made by the bank to the merchant pursuant to the cardholder agreement constituted a loan to the cardholder. As a result, the lender’s complaint was timely filed.

Courts State Issues Credit Cards Debt Collection Statute of Limitations FDCPA

New Mexico amends financial lending licensing requirements

On April 2, the New Mexico governor signed HB 584, which amends the Collection Agency Regulatory Act and the Motor Vehicle Sales Finance Act to, among other things, require sales finance companies obtain a license to conduct business in the state. The bill outlines licensing requirements for such companies. State and national banks authorized to do business in the state are not required to obtain a license under the Motor Vehicle Sales Finance Act, “but shall comply with all of its other provisions.” Under HB 584, the Director of the Financial Institutions Division of the Regulation and Licensing Department may utilize the Nationwide Multistate Licensing System and Registry (NMLS) or other entities designated by the NMLS in order to receive and process licensing applications. The Director is also granted the authority to issue and deny licenses.

HB 584 also amends definitions used within the state’s Mortgage Loan Originator Licensing Act, and outlines provisions related to (i) licensing, registration, renewal, and testing requirements; (ii) certain exemptions; (iii) the issuance of temporary licenses to out-of-state mortgage loan originators who are both licensed through the NMLS and complete the mandatory education and testing requirements; and (iv) continuing education requirements. HB 584 also grants the Director the authority to establish rules for licensing challenges; “deny, suspend, revoke or decline to renew a licenses for a violation of the New Mexico Mortgage Loan Originator Licensing Act”; and impose civil penalties for violations.

Furthermore, HB 584 also amends the definitions used within the state’s Uniform Money Services Act and the Collection Agency Regulatory Act by listing licensing application requirements, and granting the Director the same authorities provided above.

The amendments take effect July 1, 2019.

State Issues State Legislation Consumer Lending Licensing Auto Finance Mortgages Mortgage Origination Money Service / Money Transmitters Debt Collection NMLS

11th Circuit: An implicit threat of litigation is enough to assert a FDCPA claim

On April 5, the U.S. Court of Appeals for the 11th Circuit reversed in part and affirmed in part a district court’s order dismissing a plaintiff’s action alleging a debt collector violated the FDCPA when attempting to collect on a time-barred debt. According to the opinion, the plaintiff brought a lawsuit asserting a debt collector (i) violated the FDCPA’s prohibition on “false, deceptive or misleading” practices under section 1692e; (ii) violated the FDCPA’s prohibition on “unfair or unconscionable” practices under section 1692f by attempting to collect on a time-barred debt; and (iii) violated Florida state collection laws. The district court dismissed the FDCPA claims, concluding that the law allows for collectors to seek “voluntary repayment of…time-barred debt so long as the debt collector does not initiate or threaten legal action,” and declined to exercise jurisdiction over the state law claims once it dismissed the FDCPA claims.

On appeal, the 11th Circuit affirmed the dismissal of the section 1692f claim, rejecting the argument that attempts to collect on time-barred debt are generally unconscionable or unfair under the law. As for the claim under section 1692e, the 11th Circuit concluded the collection letter could plausibly be misleading or deceptive to the “least sophisticated consumer.” Specifically, the 11th Circuit noted that, “as a general matter, a creditor can seek voluntary payment of a time-barred debt,” but the “right to seek repayment does not confer a right to mislead” and one must only “reasonably infer an implicit threat” of litigation to state a claim under section 1692e. The 11th Circuit concluded that the letter’s offer to “resolve” the debt at a discount—“combined with a deadline” to accept the offer—is a “warning” that the offer may not be renewed, and that a lack of disclosure that the debt is time barred could “plausibly deceive or mislead an unsophisticated consumer as to the legal status of the debt, even in the absence of an express threat of litigation.” In reversing the dismissal of the claim under section 1692e, the appellate court also reinstated the state law claim and remanded the case back to district court.

Courts Eleventh Circuit Appellate Debt Collection FDCPA

District Court: Using department store name as creditor is not prohibited under the FDCPA

On March 21, the U.S. District Court for the Southern District of Florida granted a debt collector’s motion for summary judgment in an action alleging that the debt collector violated the FDCPA by failing to name the creditor to whom the debt was owed. According to the opinion, the debt collector sent a consumer an initial demand letter stating it was attempting to collect a debt and named the department store associated with the credit card as the current and original creditor. The consumer initiated an action against the debt collector alleging violations of the FDCPA for failing to specifically name the creditor associated with the department store credit card. Both parties moved for summary judgment. Because the department store’s name was on the credit card, the application, and the billing statements, and consumers are directed to make payments to the department store by mail or online, the court determined that using the creditor’s name “could very well cause confusion and influence a consumer’s decision to pay or challenge the debt.” Using the department store’s name, while potentially a technical misrepresentation, is not a material misrepresentation under the FDCPA because it “would not mislead the least sophisticated consumer or influence a decision about whether to pay or challenge the debt,” as it named the entity the consumer had conducted business with in connection with the debt.

Courts Debt Collection FDCPA Credit Cards

11th Circuit: SOL begins on date of mortgage loan acceleration

On March 11, the U.S. Court of Appeals for the 11th Circuit affirmed a lower court’s dismissal of a consumer’s FDCPA action. The consumer alleged that his mortgage servicer violated the FDCPA by attempting to collect overdue payments beyond Florida’s five-year statute of limitations for foreclosure actions. According to the opinion, the consumer “stopped paying his mortgage in 2008 and has not made payments since then.” In 2009, the servicer invoked an acceleration clause and attempted to foreclose on the property, but the foreclosure action was dismissed in 2011. In 2015, the servicer sent another notice of default, accelerated the debt once again, and filed a second foreclosure action seeking the entire debt, including all delinquent payments since 2008. The consumer filed suit, arguing that the servicer, by seeking pre-2010 debt in 2015, violated the FDCPA’s prohibition on the collection of time-barred debts. The lower court dismissed the action.

On appeal, the 11th Circuit held that the pre-2010 debt sought in the 2015 foreclosure action “was not time-barred as a matter of law” and therefore did not violate the FDCPA. The 11th Circuit found that Florida’s five-year statute of limitations does not necessarily bar the recovery of payments that were originally due more than five years prior to the filing of the foreclosure action. Instead, any time a consumer defaults and the servicer invokes an acceleration clause, the entire debt “comes due” and the five-year clock starts to run.

Courts FDCPA Mortgage Servicing Eleventh Circuit Appellate Debt Collection

9th Circuit: Administrator vicariously liable for debt collectors’ alleged TCPA violations

On March 22, the U.S. Court of Appeals for the 9th Circuit reversed a lower court’s decision to dismiss TCPA claims against a student loan administrator (defendant), finding that the administrator could be held vicariously liable for a contractor’s alleged debt collection attempts. The plaintiff claimed in her suit that the companies hired by the contracted student loan servicer violated the TCPA by using an autodialer when attempting to contact borrowers to collect payment. The plaintiff argued that the defendant was “vicariously liable” for the alleged TCPA violations of the companies that were hired to collect the plaintiff’s debts, and that the defendant was “similarly liable under the federal common law agency principles of ratification and implied actual authority.” The claims against the collectors and the servicer were dismissed for lack of personal jurisdiction, and the lower court ruled on summary judgment that a jury could not hold the defendant responsible for the actions of the servicer.

On appeal, the split three-judge panel held that a reasonable jury could find that the defendant knew of the alleged TCPA violations, and that because the defendant “ratified the debt collectors’ calling practices by remaining silent,” or alternatively, willfully ignored potential violations through its collections arrangement with the servicer, a jury could find a “principal-agent” relationship—even if one did not exist in the contract—and the court should hold it liable for the collectors’ TCPA violations. According to the panel, there was evidence in the record that the defendant “had actual knowledge” of the alleged violations through audit reports provided by the servicer and “did nothing” to ensure that the debt collectors complied with the law. However, the entire panel agreed that the defendant was not per se vicariously liable for the debt collectors’ alleged TCPA violations.

In dissent, Judge Bybee agreed with the panel that the defendant is not per se vicariously liable for the debt collectors’ practices, and noted in addition that there is not enough evidence to show that the defendant consented to practices that violate the TCPA or that it granted the debt collectors authority to violate the law. He wrote, “there is no evidence whatsoever that [the defendant] approved of such practices. In fact, the only evidence in the record is to the contrary: when [the defendant] learned of wrongful practices, it reported them to [the servicer] and asked [the servicer] to correct the problem.”

Courts Ninth Circuit Appellate Robocalls TCPA Debt Collection Autodialer Class Action

District Court: Debt collector did not buy right to arbitrate with credit card account

On March 22, the U.S. District Court for the Eastern District of Pennsylvania ruled that a debt collector (defendant) who purchased a consumer’s credit card account failed to establish that the sale of the account included the sale of the right to arbitrate disputes relating to the account. According to the ruling, a bank sold a consumer’s credit card account to the defendant after the plaintiff defaulted on his payments. The agreement between the consumer and the bank included a mandatory arbitration clause, as well as a class action waiver. When the defendant sent a collection letter to the plaintiff, the plaintiff filed a lawsuit alleging the letter violated the FDCPA because, among other things, it included ambiguous language regarding discount payment options. The defendant moved to compel arbitration. The court denied the defendant’s motion, stating that the sale of the accounts does not axiomatically include the right to arbitrate disputes relating to them, and that the defendant had not provided adequate documentation to support the conclusion that it did in this case. The court found that “subject to further argument and possible evidence clarifying possible ambiguity in the use of the term ‘account’ in the assignment,” the court would not presume that the sale of the accounts included the bank’s rights to compel arbitration.

Courts Debt Collection Arbitration Credit Cards

District Court partially grants summary judgment in favor of CFPB in debt collection action

On March 21, the U.S. District Court for the Northern District of Georgia partially granted the CFPB’s motion for summary judgment against a New York-based company and three individuals for allegedly violating the CFPA and the FDCPA in a debt collection operation, but denied the motion for the remaining defendants—a Georgia-based company and one individual—determining there was a genuine issue of material fact. As previously covered by InfoBytes, in March 2015, the CFPB filed a lawsuit against participants in the debt collection operation, alleging that the participants attempted to collect debt that consumers did not owe or that they were not authorized to collect. Further, the CFPB alleged that the participants used harassing and deceptive techniques, including placing robocalls through a telephone broadcast service provider to millions of consumers, stating that the consumers had engaged in check fraud and threatening them with legal action if they did not provide payment information. As a result, according to the CFPB’s allegations, the participants received millions of dollars in profits from the targeted consumers. The CFPB moved for summary judgment on all claims.

The court granted the motion on all claims against the New York-based company and three individuals, concluding that they committed multiple violations of the CFPA and the FDCPA through, among other things, the robocalls, false legal threats, and the processing of consumer payments. With respect to the CFPA claims against certain individuals, the court found that they provided “substantial assistance” to the other participants in the operation as they committed actions in violation of the CFPA, and therefore were liable themselves. With respect to the Georgia-based company and one individual, the court concluded that there was a genuine issue of material fact as to whether either qualified as a “debt collector” under the FDCPA and, therefore denied the CFPB’s motion as to those claims. Because there are remaining issues as to some of the participants’ liability, the court concluded that a ruling on damages would be premature.

Courts FDCPA CFPB Debt Collection CFPA

CFPB and FTC release 2018 FDCPA report

On March 20, the CFPB and the FTC released (here and here) their annual report to Congress on the administration of the FDCPA, which highlights the 2018 efforts of the agencies. The agencies coordinate in enforcement; share supervisory and consumer complaint information; and collaborate on education under a memorandum of understanding that was reauthorized in February. (Covered by InfoBytes here.) In the report, the Bureau acknowledges its intent to release a Notice of Proposed Rulemaking on debt collection covering issues such as “communication practices and consumer disclosures” in spring 2019. In addition to highlighting the Bureau’s debt collection education efforts, the report also states that in 2018 the Bureau (i) received approximately 81,500 debt collection complaints related to first-party and third-party collections; (ii) initiated six public enforcement actions alleging violations of the FDCPA, one resulting in an $800,000 civil money penalty; and (iii) identified one or more violations of the FDCPA through supervisory examinations.

As for the FTC, in addition to education efforts, the report states that in 2018 the agency (i) initiated or resolved seven enforcement actions, three of which were related to phantom debt collection, obtaining more than $58.9 million in judgments; (ii) returned money to thousands of consumers who were targeted by phantom debt collection operations; and (iii) banned 32 companies and individuals from working in the debt collection market.  

Federal Issues CFPB FTC Debt Collection FDCPA Consumer Education Enforcement Supervision MOUs

2nd Circuit affirms dismissal of FDCPA action

On March 12, the U.S. Court of Appeals for the 2nd Circuit affirmed dismissal of a consumer’s action against a debt collector, holding that the collection letter complied with the FDCPA. According to the opinion, the consumer filed a putative class action alleging the letter he received from the debt collection company violated Sections 1692e and 1692g of the FDCPA because it failed to inform him of details about his debt, such as what portion is principal and if there is interest. Additionally, the consumer alleged the letter conveyed the “mistaken impression ‘that the debt could be satisfied by remitting the listed amount as of the date of the letter, at any time after receipt of the letter.’” The lower court dismissed the action, noting that the letter stated the debt owed as of its date and stated that the amount may increase because of interest and fees, as required by the FDCPA.

On appeal, the 2nd Circuit agreed with the lower court. The appellate court rejected the consumer’s arguments that the letter failed under Section 1692g because it didn’t specify what portion of the debt is principal and if interest applied when it stated, “[a]s of the date of this letter, you owe $5918.69.” The appellate court found that the letter adequately informed the consumer of the total quantity of his debt and emphasized that nothing in Section 1692g requires the debt collector to explain the components of the debt or “precise rates by which it might later increase.” Moreover, the appellate court concluded that nothing about the debt collection letter “could be fairly characterized as ‘false, deceptive, or misleading’” under Section 1692e, as the letter explicitly stated the consumer’s balance may increase based on the day he remitted payment.

Courts Second Circuit Appellate FDCPA Debt Collection