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On March 6, the North Dakota governor signed HB 1204, which allows a collection agency to collect a transaction fee for processing a credit card payment. Under the amended law, a collection agency may collect, in addition to the principal amount of the claim, a transaction fee up to two and half percent for processing a credit card payment if: (i) the transaction fee is not otherwise prohibited under the law; (ii) a no-cost payment option is available to the debtor; and (iii) the no-cost payment option is disclosed to the debtor at the same time and in the same manner that the credit card information is taken. The law takes effect on August 1.
On March 5, the U.S. District Court for the Southern District of New York granted an online retailer’s motion to dismiss an action alleging the retailer violated the FDCPA and the TCPA. According to the opinion, the plaintiff received a $300 credit line with the retailer for a laptop computer, which the plaintiff alleges he never received. The plaintiff alleges that the retailer continued to seek payment for the laptop and repeatedly contacted the plaintiff by phone after the plaintiff disputed the payment and informed the retailer to only communicate in writing. The retailor subsequently sent the plaintiff a letter acknowledging his request to only be contacted in writing, revoking prior consent to be contacted by phone. The plaintiff then filed the FDCPA and TCPA claims against the retailer after the plaintiff sought to collect $150,000 from the retailer for expenses defending against the retailer’s collection attempts, which the plaintiff argued the retailer “tacitly agreed” to pay. The retailer moved to dismiss the claims arguing the plaintiff failed to allege the retailer was a “debt collector” under the FDCPA and that the plaintiff failed to establish the retailer called the plaintiff without his prior consent under the TCPA. The court agreed, noting that the retailer had serviced the plaintiff’s account “well before” the plaintiff owed an actual debt and therefore, is not a debt collector under the FDCPA. As for the TCPA claim, the court found that the plaintiff failed to show the retailer called him after the parties agreed to revoke the prior consent. The court rejected the plaintiff’s argument that he had revoked consent prior to the retailer’s acknowledgment of the revocation, noting that a party cannot unilaterally revoke consent under the TCPA. Because the plaintiff failed to state plausible claims under the FDCPA and the TCPA, the court dismissed the action and denied the plaintiff leave to amend his complaint.
On March 5, the U.S. District Court for the Northern District of Ohio denied a debt buyer’s motion to dismiss a consumer action alleging the company violated the FDCPA and the Ohio Consumer Sales Practices Act (OCSPA) by requesting a credit reporting agency account review after the alleged debt had been discharged in bankruptcy. According to the opinion, the consumer’s debts were discharged in November 2017 after a Chapter 7 bankruptcy, and in December 2017, the company requested an account review through a credit reporting agency for collection purposes. The consumer alleges the company violated the FDCPA and the OCSPA because the company could not legally collect on a debt that had already been discharged in bankruptcy. The company moved to dismiss the action arguing it was not a debt collector under the FDCPA nor was it a “supplier” under the OCSPA, but rather is merely a “passive debt purchaser” and only reviewed the report but took no further action, which does not qualify as collection conduct. The court disagreed, noting that it must accept the consumer’s allegations as true at this stage, and determined the allegations plausibly support her claim that the company is a debt collector under the FDCPA. Moreover, the court acknowledged that while the company only sought to receive information from the credit reporting agency, it did convey that the contact was for the purposes of collection. Therefore, the allegations by the consumer that the company violated the FDCPA for representing a debt was for collection when it was previously discharged were sufficient to survive the motion. As for the OCSPA, the court found that the company’s activities may effect consumer transactions, which makes it plausible that the company is a “supplier” under the statute.
On March 5, the U.S. District Court for the Northern District of Illinois denied defendants’ motion to dismiss a class action lawsuit alleging the defendants violated the FDCPA by failing to mention that payment on a settlement offer would restart the statute of limitations on the underlying “legally unenforceable debt.” According to the opinion, the defendants sent the plaintiff a letter outlining three discount program payment options, with a post-script stating that “[d]ue to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.” However, the plaintiff claimed that the letter’s failure to disclose that the statute of limitations could be restarted if a payment was made was a concrete information injury sufficient for Article III standing. The court rejected the defendants’ argument that the plaintiff alleged only a bare statutory violation and failed to identify a particularized injury in fact. Instead, the court ruled that even though the plaintiff has a complete defense because the statute of limitations had expired, the alleged injury is clear because the letter “seems to bait the consumer into paying money on a time-barred debt, either by settling for sixty cents on the dollar . . . or by unwittingly renewing the statute of limitations by making a new payment on the debt.”
On February 28, the U.S. District Court for the District of New Jersey dismissed a putative class action alleging a debt collector violated the FDCPA by sending a collection letter, which allegedly failed to properly notify the plaintiff of his right to dispute the debt. According to the opinion, the collection agency sent a one-page collection letter notifying him that a dispute must be in writing. The letter also contained two telephone numbers and requested the consumer call with any questions or concerns. In his complaint, the consumer argued that the inclusion of the phone numbers and request for telephone contact, “overshadows or contradicts” the debt dispute notice required by law. The collection agency moved for judgment on the pleadings and dismissal, arguing that the consumer failed to state a legal claim under the FDCPA. The court agreed, stating that “nothing about the form of the letter overshadows or contradicts the information in the validation notice.” Specifically, the sentence that requested the consumer call the collection agency does not mention disputing the debt, and the only reference to disputing the debt is in the standard validation notice one paragraph below, which specifies it must be done in writing. Because the consumer’s FDCPA claims failed, the court entered judgment and dismissed the action.
On February 25, the CFPB petitioned the U.S. District Court for the Southern District of New York for an order requiring a debt collection law office to comply with a civil investigative demand (CID) issued by the Bureau in June 2017. The CID requested information from the debt collection firm as part of a Bureau investigation into whether debt collectors, furnishers, or other persons associated with the collection of debt and furnishing of information have engaged or are engaging in unfair, deceptive, or abusive acts or practices in violation of the CFPA, FDCPA, and FCRA. According to the petition, the firm partially responded but withheld several responses asserting that doing so would require the firm's principal to violate professional responsibility rules in the states of New York and New Jersey. Withheld information, the Bureau claims, includes telephone calls and written correspondence with indebted consumers, disputes with consumers over the firm's credit reporting activities to third party agencies, and service contracts with creditors on whose behalf the firm collects debt. The Bureau argued that the court should direct the law firm to comply with the CID because, aside from following all applicable procedural requirements for the issuance of a CID contained within the CFPA, it “has shown that the investigation is being conducted for a legitimate purpose, that the inquiries may be relevant to that purpose, that the information sought is not already within the Bureau's possession, and that the administrative steps required by the [CFPA] and its implementing regulations have been followed. . . .” The Bureau further requested an order that the firm show cause and explain why it should not be compelled to comply with the CID.
On February 22, the U.S. Court of Appeals for the 3rd Circuit issued a precedential order affirming a district court’s ruling that an entity that purchases charged-off receivables and outsources the collection activity to a third party still qualifies as a debt collector and, therefore, may be bound by the dictates of the FDCPA. According to the opinion, a consumer filed a lawsuit against the debt-buying company alleging voicemail messages she received from the company’s contractor failed to identify the contractor as a collection agency. The consumer further alleged that a letter the contractor sent did not inform her how to exercise her validation rights, in violation of the FDCPA. The district court ruled that the defendant, which identifies itself as a creditor, meets the “principal purpose” definition of a debt collection under the FDCPA and therefore must comply with its provisions. On appeal, the defendant argued that debt collection and purchasing are “mutually exclusive,” and that the district court's ruling should be reversed under the U.S. Supreme Court’s decision in Henson v. Santander Consumer USA, which held that the FDCPA does not necessarily apply to a company collecting debts in default that it purchased for its own account. (See previous Buckley Special Alert on the decision here.)
However, the 3rd Circuit agreed with the district court’s decision, and rejected the defendant’s arguments that the Henson decision renders it a creditor rather than a debt collector. “The Supreme Court went out of its way in Henson to say that it was not opining on whether debt buyers could also qualify as debt collectors” under certain provisions of the FDCPA, and moreover, “[a]n entity qualifies under the definition if the ‘principal purpose’ of its ‘business’ is the ‘collection of any debts,’” the panel wrote. “As long as a business’s raison d’etre is obtaining payment on the debts that it acquires, it is a debt collector. Who actually obtains the payment or how they do so is of no moment,” the 3rd Circuit wrote.
The appellate court’s opinion, however, did not address the actual question of liability asserted against the defendant, but rather remanded the case for consideration as to whether the defendant is vicariously liable for claims related to the contractor’s actions.
On January 11, the U.S. Court of Appeals for the 2nd Circuit affirmed a district court’s decision that two individual co-owners were jointly and severally liable for nearly $11 million for debt collection activities conducted by their companies (corporate defendants) that violated the Federal Trade Commission Act (FTCA) and the FDCPA. According to the opinion, the corporate defendants misrepresented that they were investigators calling from a “fraud unit” or a “fraud division,” falsely accused debtors of committing check fraud, threatened consumers with criminal prosecution if the debts were not paid, and contacted friends, family, employers, or co-workers, “telling them that the debtors owed a debt, had committed a crime in failing to pay it, and faced possible legal repercussions.” The district court held that the co-owners were personally liable for the $10,852,368 calculated by the FTC, which represented the total amount received by the corporate defendants from consumers as a result of their actions. One of the co-owners appealed the decision that he was personally liable and argued that the district court erred in determining the amount of equitable monetary relief.
On appeal, the 2nd Circuit agreed with the district court that the co-owner “had both sufficient authority over the [c]orporate [d]efendants, and knowledge of their practices, to be held individually liable for their misconduct as a matter of law.” The court also upheld the disgorgement amount, reasoning that the FTC’s process to determine the amount was entitled to a presumption of reliance because it was based on the submission of more than 500 consumer complaints concerning the corporate defendants’ debt collection practices, aggressive collection scripts, and audio recordings of twenty-one of the twenty-five debt collectors “falsely telling consumers that the employees were law enforcement personnel or ‘processors.’” Moreover, the court noted that the co-owner failed to submit proof that the corporate defendants earned some or all of their revenue through lawful means.
On February 11, the U.S. District Court for the District of New Jersey denied a motion to dismiss a putative class action against a debt collector and its legal counsel, holding that the plaintiff debtor made a plausible claim under the FDCPA that the debt collector was required by New Jersey’s Consumer Financing Licensing Act (NJCFLA) to be licensed as a consumer lender. According to the opinion, the plaintiff had defaulted on his credit card debt and, nine years later, received a letter from the defendant’s legal counsel seeking payment of the balance due. The plaintiff filed a proposed class action arguing that the letter violated the FDCPA because the debt collector had not been licensed with the New Jersey Department of Banking and Insurance prior to purchasing the debt, and therefore lacked the authority to collect on the debt. The defendant debt collector moved to dismiss the complaint, claiming, among other things, that it was exempt from the licensing requirements because it did not qualify as a “consumer loan business” under the NJCFLA. The debt collector argued that it never exceeded the state’s interest rate cap and therefore was exempt from the licensing requirements. However, the plaintiff argued that the defendant’s licensing violation arose from a second part of the “consumer loan business” definition, under which the licensing requirements apply because the defendant “directly or indirectly engag[es] . . . in the business of buying. . . notes.” The district court agreed with the plaintiff, stating that “[t]his statutory language does not narrow the category of lenders falling under that definition according to the interest rates that they charge.”
On February 11, the U.S. District Court for the District of New Jersey denied a motion by a debt collector and its managers to compel arbitration, concluding that discovery was needed in order to determine whether an arbitration clause applied to the plaintiffs’ claims regarding FDCPA violations. According to the opinion, the plaintiffs filed a proposed class action alleging that the debt collection company’s collection letters violated the FDCPA because they did not “properly identify the name of the current creditor to whom the debt is owed.” The debt collectors moved to compel arbitration, arguing that the debts described in the plaintiffs’ amended complaint arose pursuant to credit card agreements that include an arbitration clause, and submitted a declaration from an employee of the servicing entity for the credit card issuer, with credit card account terms and conditions, including arbitration clauses, as an attachment. The court denied the motion, noting that the Fed. R. Civ. P. 12(b)(6) standard requires that the amended complaint “establish with clarity that the parties have agreed to arbitrate,” and in this instance, no arbitration clause was cited. The court denied the motion to compel pending further development of the factual record by plaintiffs conducting discovery on the issue.
- Buckley Webcast: The next consumer litigation frontier? Assessing the consumer privacy litigation and enforcement landscape in 2019 and beyond
- Buckley Webcast: The CFPB’s proposed debt collection rule
- Buckley Webcast: Trends in e-discovery technology and case law
- Brandy A. Hood to discuss "What the flood? Don’t get washed away by a flood of changes" at the American Bankers Association Regulatory Compliance Conference
- Daniel P. Stipano to discuss "Mitigating the risks of banking high risk customers" at the American Bankers Association Regulatory Compliance Conference
- Daniel P. Stipano, Kari K. Hall, Brandy A. Hood, and H Joshua Kotin to discuss "Regulations that matter in a deregulatory environment" at the American Bankers Association Regulatory Compliance Conference Power Hour
- Buckley Webcast: Data breach litigation and biometric legislation
- Hank Asbill to discuss "Pay no attention to the man behind the curtain: Addressing prosecutions driven by hidden actors" at the National Association of Criminal Defense Lawyers West Coast White Collar Conference
- Daniel P. Stipano to discuss "Keep off the grass: Mitigating the risks of banking marijuana-related businesses" at the ACAMS AML Risk Management Conference
- Daniel P. Stipano to discuss "Mid-year policy update" at the ACAMS AML Risk Management Conference
- Amanda R. Lawrence to discuss "Navigating the challenges of the latest data protection regulations and proven protocols for breach prevention and response" at the ACI National Forum on Consumer Finance Class Actions and Government Enforcement
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference
- Douglas F. Gansler to discuss "Role of state AGs in consumer protection" at a George Mason University Law & Economics Center symposium