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On February 13, the U.S. Court of Appeals for the 7th Circuit vacated a lower court’s decision to rescind class certification for a group of automotive dealerships (plaintiffs), concluding the lower court did not provide a sufficiently thorough explanation of its decision for the appeals court to reach a decision. According to the opinion, the plaintiffs were granted class certification of breach of contract and RICO claims, among others, brought against an inventory financing company for allegedly improperly charging interest and fees on credit lines before the money was actually extended by the company for the automobile purchases. The company had moved the district court to reconsider the class certification, arguing the plaintiffs admitted the financing agreements were ambiguous on their face, and therefore extrinsic evidence on an individual basis would be required to establish the parties’ intent. In response, the plaintiffs had argued that patent ambiguity in the contract does not require consideration of extrinsic evidence and individualized proof. The district court had agreed with the company, concluding that “ambiguity in the contracts requires consideration of extrinsic evidence, necessitates individualized proof, and undermines the elements of commonality and predominance for class certification.”
On appeal, the 7th Circuit concluded the denial of class certification lacks “sufficient reasoning” to ascertain the basis of the decision, noting that while the original decision to grant certification was a “model of clarity and thoroughness,” the decision to withdraw certification provides only a conclusion. Moreover, the appellate court concluded that the mere need for extrinsic evidence does not in itself render class certification improper and therefore the court needed a more thorough explanation of its reasoning to decertify the class.
On February 7, the U.S. Court of Appeals for the 7th Circuit held that arithmetic does not affect a debt’s “character” under the FDCPA, reversing the district court’s judgment against a debt collector. A debt collector reported to a credit bureau that the debtor had nine unpaid bills of $60, rather than one aggregate debt of $540. The debtor filed suit, arguing that the debt collector violated the FDCPA’s prohibition on making a “false representation” about “the character, amount, or legal status of any debt.” The district court agreed with the debtor, determining that the debt collector should have reported the amount in the aggregate and imposing a $1,000 penalty for the violation.
On appeal, the 7th Circuit noted a lack of authoritative or persuasive guidance discussing whether aggregation of all amounts owed to a creditor “concerns the ‘character’ of a debt” under the FDCPA. The appeals court concluded that the number of specific transactions between a debtor and a creditor “does not affect the genesis, nature, or priority of the debt” and, therefore, does not concern its character. Moreover, the court noted that “‘amount’ rather than the word ‘character’ is what governs reporting the debt’s size”; otherwise, there would be no distinction in the FDCPA’s prohibition on false representations about the “character, amount, or legal status” of a debt. Because it was undisputed that the debtor incurred nine debts of $60 each to a single creditor, the debt collector did not misstate the “character” of the debt under the FDCPA.
On December 20, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of a debt collector, holding the collection letters effectively stated the amount of the debt under the FDCPA. According to the opinion, a consumer received four collection letters from a debt collector stating an account balance of $794.67. The consumer sued the debt collector, alleging the letters were false, deceptive, or misleading and failed to effectively state the amount of the debt in violation of the FDCPA because, according to the terms in the creditor’s online sample agreement, the original creditor could have collected interest on post-charge off fees after the debt collector closed the account. Both parties moved for summary judgment. The court determined the collection letter at issue complied with the FDCPA because the debt collector “sought to collect only the amount due on the date it sent the letter” and was not “trying to collect the listed balance plus the interest running on it or other charges.” Moreover, the court rejected the consumer’s argument that the letter was false, deceptive, or misleading because it failed to include whether the creditor could charge additional interest or other fees on the original debt, determining the letter could not mislead or deceive an unsophisticated consumer. Specifically, citing the U.S. Court of Appeals for the 7th Circuit’s decision in Wahl v. Midland Credit Management, the court stated that a debt collector “need only request the amount it is owed; it need not provide whatever the credit-card company may be owed more than that.” Because a consumer of reasonable intelligence and basic financial knowledge would read the collection letter and determine that he or she owes $794.67, the court granted summary judgment in favor of the debt collector.
7th Circuit holds consumers can be expected to read second page of two-page collection letter, affirms dismissal of FDCPA action
On December 7, the U.S. Court of Appeals for the 7th Circuit affirmed the dismissal of a consumer’s class action against a debt collection company for allegedly violating the FDCPA by indicating “additional important information” was on the back of the first page when the required validation notice was actually on the front of the second page. According to the opinion, the consumer alleged the debt collection notice “misleads the unsophisticated consumer by telling him that important information is on the back, but instead providing the validation notice on the front of the second page, thereby ‘overshadowing’ the consumer’s rights” under the FDCPA. The debt collector moved to dismiss the action for failure to state a claim and the district court granted the dismissal and declined to allow the consumer leave to amend the complaint.
On appeal, the 7th Circuit determined that the location of the validation notice—which “is clear, prominent, and readily readable”—did not overshadow the consumer’s FDCPA rights or misrepresent the importance of the notice, notwithstanding the language on the first page indicating the important information would be on the back of the first page, not on the top of the second page. The 7th Circuit explained, “The FDCPA does not say a debt collector must put the validation notice on the first page of a letter. Nor does the FDCPA say the first page of a debt-collection letter must point to the validation notice if it is not on the first page. Nor does the FDCPA say a debt collector must tell a consumer the validation notice is important. Nor does the FDCPA say a debt collector may not tell a consumer that other information is important.” The appellate court rejected the consumer’s unsophisticated consumer argument, concluding that "[e]ven an unsophisticated consumer—maybe especially one—can be expected to read page two of a two-page collection letter." Moreover, the appellate court upheld the denial of the consumer’s request to amend her complaint, noting that no proposed amendment would push the plaintiff’s “original claim into the realm of plausibility.”
On November 7, the U.S. Court of Appeals for the 7th Circuit affirmed a grant of summary judgment in favor of a mortgage servicer. The court, noting the District Court had concluded there was insufficient evidence to support a claim the servicer had violated RESPA, affirmed the lower court decision that even if such a violation had occurred, the homeowner plaintiff failed to demonstrate any actual harm from the servicer’s alleged failure to fully respond to his qualified written request (QWR). According to the opinion, in November 2012, a state court entered a judgment of foreclosure against a homeowner who struggled to make payments on his mortgage loan; and after numerous reschedulings due to bankruptcy filings, a sheriff sale was set to be conducted in October 2016. In August 2016, the homeowner sent a letter to his mortgage servicer with “twenty-two wide-ranging questions about his account.” The mortgage servicer treated the letter as a QWR under RESPA, acknowledged receipt of the letter and stated it would provide a substantive response by September 30, the deadline under the statute. Two days prior to the statutory deadline, the homeowner and his wife filed a lawsuit against the mortgage servicer, alleging violations of RESPA and Wisconsin law for failing to respond to the QWR, which they argued, would have provided information to assist in their fight against forthcoming sheriff’s sale. The mortgage servicer mailed a response on September 30, consisting of a three-page letter and 58 pages of attachments, which addressed “most of [the homeowner]’s questions to some degree, but not all of them,” and also invited further information from the homeowner to consider further responses. The district court granted the mortgage servicer’s motion for summary judgment, concluding that the homeowner failed to provide evidence the mortgage servicer violated RESPA or state law and failed to show how any alleged failure, even had it occurred, caused harm.
On appeal, the 7th Circuit determined the homeowner had standing to sue the mortgage servicer but his wife did not, as she had no legal interest in the property. As for the alleged RESPA violation, assuming such a violation occurred, the court concluded that the homeowner failed to establish an actual harm that resulted from the mortgage servicer’s alleged violation. Specifically, the appeals court disagreed with the homeowner that the fees paid to an attorney to review the mortgage servicer’s response “could be a cost incurred as a result of an alleged violation” of RESPA. The appeals court also rejected claims of damages for physical and emotional distress because the homeowner’s “stress had essentially nothing to do with any arguable RESPA violations.”
On October 22, the U.S. Court of Appeals for the 7th Circuit held that the availability of class or collective arbitration within an employment agreement is a threshold “question of arbitrability” that must be decided by a court. According to the opinion, an employee filed class and collection action claims against her employer for wage and hour violations. The district court compelled arbitration pursuant to an agreement between the employee and her employer but struck as unlawful a waiver clause that forbid class or collective arbitration of any claim. The case proceeded to arbitration and the arbitrator issued an award of over $10 million in damages to the employee and the other 174 claimants who had opted-in to the arbitration proceeding. The employer appealed the award, arguing that the waiver of collective arbitration provision was valid, rendering the collective arbitration in violation of the employment agreement.
On appeal, the 7th Circuit reversed and remanded the case to the district court, pointing to the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, which upheld the validity of similar provisions. (Epic held that “an arbitration agreement does not violate the National Labor Relations Act when it requires plaintiffs to pursue employment-related claims in single claimant arbitrations.”). The plaintiff also argued, however, that despite the presence of the waiver, the arbitration agreement still permitted collective arbitration. This left open the question of who interprets the agreement to determine whether collection arbitration applies—the arbitrator or the court. The 7th Circuit found for the latter, concluding that the availability of class or collective arbitration is a threshold question of arbitrability and therefore a district court, and not the arbitrator should decide its permissibility.
On October 18, the U.S. Court of Appeals for the 7th Circuit held that an individual is a “qualified consumer” under the FDCPA, even when he is alleged by debt collectors to owe debts that he claims he does not owe. According to the opinion, a credit card was fraudulently opened in the plaintiff appellant’s name and was charged off, after default, to a debt collector who filed suit in an attempt to collect the debt. After the small-claims collection case was dismissed, the plaintiff appellant sued the debt collector for alleged violations of the FDCPA and the Illinois Collection Agency Act. The district court dismissed the action, holding that, to be a “consumer” under FDCPA, the individual must “allege he actually owed a debt.” On appeal, the 7th Circuit reversed. It held that the plain language of FDCPA covers individuals “allegedly obligated to pay” a debt, which includes “obligations alleged by the debt collector as well.” As a result, individuals who are alleged by debt collectors to owe debts are consumers under the FDCPA, even if they deny having any connection to the debt or any obligation to pay it.
On October 18, the U.S. Court of Appeals for the 7th Circuit affirmed summary judgment for a mortgage servicer, holding that the plaintiff homeowners failed to show racial discrimination in violation of the Equal Credit Opportunity Act (ECOA) when the servicer required the homeowners to bring the prior loan current before assuming it. According to the opinion, the homeowners purchased a home from the previous homeowner with an existing mortgage. Soon after the purchase, the homeowners learned that the previous owner had stopped making his mortgage payments and that the bank had begun to foreclose on the home. After receiving notice of foreclosure, the homeowners tried repeatedly to assume the previous owner’s mortgage which the mortgage servicer conditioned on the homeowners bringing the loan current. Unable to do so, the homeowners sued, bringing various state and federal law claims, including under ECOA, after an employee of the servicer allegedly made a remark that implied that the homeowners were not being allowed to assume the loan because of their race. The district court rejected the claims and entered summary judgment for the mortgage servicer.
On appeal, the 7th Circuit affirmed, concluding that the homeowners failed to counter the servicer’s representation that they never produced a complete application. Moreover, the court held that the alleged statement, which attributed the servicer’s decision to a race, was vague and “require[d] too much speculation to conclude that their race” was a determining factor in the requirement to satisfy the outstanding loan payments, a requirement that was otherwise consistent with the loan agreement.
7th Circuit holds, without written appearance by attorney, law firm did not violate FDCPA by serving debtor directly
On August 21, the U.S. Court of Appeals for the 7th Circuit held that a law firm did not violate the FDCPA by serving a debtor a default motion because his attorney had not yet become the “attorney of record” under Illinois Supreme Court Rule 11 (Rule 11). According to the opinion, after being sued by the law firm on a creditor’s behalf, the debtor appeared pro se and later retained an attorney to represent her. The law firm moved for summary judgment and served the motion to the debtor and to the debtor’s new attorney, who had not yet filed a written appearance. The debtor alleged the law firm violated the FDCPA by contacting her while represented by counsel. The lower court entered summary judgment in favor of the debtor. Disagreeing with the lower court, the 7th Circuit reversed, finding that Rule 11 gave “‘express’ judicial ‘permission’ to serve the default motion directly on [the debtor]” from “a court of competent jurisdiction” as required by the FDCPA— which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” ." The panel noted that Illinois precedent makes it clear that under Rule 11, a lawyer can only become an attorney of record by filing a written appearance or other pleading with the court. Because a written appearance had not yet been made, the panel reasoned, Rule 11 expressly permitted the law firm to serve the debtor directly and therefore, the firm did not violate the FDCPA.
7th Circuit reverses district court, holds settlement with debt collector moots claims against law firm
On August 13, the U.S. Court of Appeals for the 7th Circuit vacated a district court’s decision, holding that a consumer who settled with a debt collector is not entitled to pursue Fair Debt Collection Practices Act statutory damages claims against the debt collector’s law firm. Under the single recovery for a single injury principle, a consumer can only obtain one recovery for a single injury “regardless of how many defendants could be liable for that single injury, or how many different theories of recovery could apply to that single injury.” In this instance, the consumer settled the claim with the debt collector for $5,000 plus release of the consumer’s original debt. The consumer later sued the debt collector’s law firm, spending over $69,000 on attorneys’ fees to argue that the law firm filed suit to collect the debt in the wrong court. While the district court ordered the law firm to pay the attorneys’ fees to the consumer, the 7th Circuit reversed, holding that the settlement with the creditor rendered the consumer’s claim against the law firm moot and thus the consumer could not recover attorneys’ fees or costs.
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