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Financial Services Law Insights and Observations


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  • Senate Democrats’ minority report criticizes the CFPB

    Federal Issues

    On March 10, Senate Banking Committee Ranking Member Sherrod Brown (D-Ohio) released a minority staff report titled “Consumers Under Attack: The Consumer Financial Protection Bureau under Director Kraninger.” Specifically, the report faulted the Bureau for, among other allegations, purportedly protecting payday lenders, failing to properly scrutinize student loan servicers, and failing to enforce civil rights protections. The report was released the same day Kraninger testified before the Senate Banking Committee (covered by InfoBytes here). Among other things, the report argues that the CFPB’s proposed debt collection rule and supplemental notice of proposed rulemaking (covered by InfoBytes here and a Buckley Special Alert) “does more to provide safe harbors for debt collectors than protect consumers” by not banning the collection of time-barred debt. The report also reiterates concerns over Kraninger’s decision to no longer defend the CFPB’s constitutionality (covered by InfoBytes here), as well as her decision last year to delay certain ability-to-repay provisions of the agency’s 2017 final rule covering “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (covered by InfoBytes here), which has led to stays of enforcement actions.

    Federal Issues Senate Banking Committee CFPB Debt Collection Time-Barred Debt FDCPA Safe Harbor Notice

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  • 5th Circuit: Non-party plaintiff cannot bring action to enforce violation of CFPB consent order


    On March 4, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of a debt collector (defendant) accused of violating the FDCPA and the terms of a CFPB consent order. According to the opinion, the defendant attempted to collect a credit card debt from the plaintiff that the plaintiff did not recognize. In December 2014, the defendant filed suit to collect the past due debt. In the meantime, the CFPB issued a consent order against the defendant for violations of the FDCPA (covered by InfoBytes here) while the parties awaited trial. Thereafter, the plaintiff filed a complaint with the CFPB regarding the validity of the debt, but the Bureau closed that complaint after verifying the defendant’s ownership of the plaintiff’s debt. The plaintiff responded by filing his own lawsuit in March 2017, claiming the defendant violated the FDCPA by (i) “lacking validation of his debt prior to his January 2016 trial”; (ii) failing to timely validate his debt in violation of provisions of its consent order with the CFPB; and (iii) “misrepresenting that it intended to prove ownership of his debt if contested.” The district court granted summary judgment for the defendant based on the plaintiff’s failure to prove actual damages.

    On appeal, the appellate court determined that the district court erred in ruling that the plaintiff failed to plead actual damages, finding that “the FDCPA does not require proof of actual damages to ground statutory damages.” However, the appellate court did not reverse the district court’s decision. Instead, the appellate court affirmed, holding that the plaintiff’s debt validation claims were time-barred because he did not file suit within the FDCPA’s one-year statute of limitations. Regarding the other two claims, the appellate court stated that while the claims were not time-barred, the plaintiff lacked standing because “private persons may not bring actions to enforce violations of consent decrees to which they are not a party.” The CFPB’s consent order with the defendant specified that the CFPB was the enforcer of the order, and its text could not be read to invoke a private right of action permitting the plaintiff’s suit. Accordingly, the appellate court affirmed summary judgment against the plaintiff on these remaining two claims.

    Courts Appellate Fifth Circuit Debt Collection FDCPA CFPB Consent Order Statute of Limitations Time-Barred Debt

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  • Special Alert: CFPB releases Supplemental Notice of Proposed Rulemaking on Time-Barred Debt Disclosures

    Agency Rule-Making & Guidance

    On February 21, the CFPB issued a Supplemental Notice of Proposed Rulemaking (NPRM) to amend Regulation F, which implements the Fair Debt Collection Practices Act (FDCPA), to require debt collectors to make certain disclosures when collecting time-barred debts (the “Supplemental Proposed Rule”).

    The Supplemental Proposed Rule adds to the CFPB’s proposed rule, issued May 7, 2019, (InfoBytes coverage here), to amend Regulation F to broadly implement the FDCPA, with respect to third-party debt collectors (the “Proposed Rule”). The Bureau noted when releasing the earlier Proposed Rule that it was contemplating additional disclosure requirements for time-barred debt, and reserved space for such disclosures within Regulation F, as then proposed. The CFPB released several documents related to the Supplemental Proposed Rule, including a fact sheet discussing the Supplemental Proposed Rule and a report on the disclosure of time-barred debt and the right of revival, providing findings from quantitative disclosure testing that the CFPB conducted.

    * * *

    Click here to read the full special alert.

    If you have any questions regarding Time-Barred Debt Disclosures or other related issues, please visit our Debt Collection & Buying practice page or contact a Buckley attorney with whom you have worked in the past.

    Agency Rule-Making & Guidance CFPB Special Alerts FDCPA Debt Collection Disclosures Time-Barred Debt

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  • District Court concludes collection attempt on old debt did not violate FDPCA


    On July 11, the U.S. District Court for the Eastern District of Washington granted a debt collector’s motion for summary judgment, concluding the attempted collection of an old debt did not violate the FDCPA. According to the opinion, a consumer filed a class action lawsuit against the debt collector alleging the collector violated the FDCPA by (i) “falsely representing the legal status of the debt”; and (ii) using “false representations and/or deceptive means to collect or attempt to collect a debt,” when it sent a collection letter in March 2017 attempting to collect on a debt that allegedly incurred before 2009. The debt collector moved for summary judgment arguing that the consumer did not have standing and that the claim failed on the merits. The district court agreed with the debt collector, concluding that the consumer did not have standing to pursue the FDCPA claim because she did not incur any concrete injury, noting she made no claims that she was misled by the letter or confused about the status of her debt, nor did she pay on the debt or make a promise to pay. Moreover, the district court agreed that the debt collector adequately informed the consumer about the status of her debt, stating “[t]he letter clearly states that ‘[t]he law limits how long you can be sued on a debt’ and states that, ‘[d]ue to the age of this debt, we will not sue you for it[.]’” Lastly, the district court found that in order to comply with the FDCPA, the debt collectors were not required to inform consumers of the “supposed risks of partial payments or entering a payment plan.”

    Courts Debt Collection FDCPA Time-Barred Debt

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  • Texas prohibits collection actions and arbitrations on time-barred debt

    State Issues

    On June 14, the Texas governor signed HB 996, which prohibits debt buyers from commencing an action against or initiating arbitration with a consumer for the purpose of collecting a consumer debt after the statute of limitations (SOL) has expired. The bill defines “debt buyer” as “a person who purchases or otherwise acquires a consumer debt from a creditor or other subsequent owner of the consumer debt, regardless of whether the person collects the consumer debt, hires a third party to collect the consumer debt, or hires an attorney to pursue collection litigation in connection with the consumer debt.” Additionally, the bill (i) prevents a collection action on a debt that is passed the SOL from being revised by any activity on the debt, including payment; and (ii) requires a debt buyer to provide a specific written notice in the initial collection communication, including a statement that the debt is time-barred and the debt collector would not sue the consumer for it. The bill is effective September 1.

    State Issues State Legislation Debt Collection Debt Buyer Statute of Limitations Time-Barred Debt

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  • 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 Time-Barred Debt

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