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On September 1, the U.S. District Court for the Northern District of Illinois granted a defendant debt collector’s motion for summary judgment resolving FDCPA allegations. The defendant allegedly sent the plaintiff a debt collection letter, which the plaintiff disputed. Then, the plaintiff allegedly received another letter that included language regarding how to dispute the debt. Again, the plaintiff disputed the debt, requested validation of the debt, and filed a second dispute, which allegedly caused the plaintiff “stress and confusion” and “led her to unnecessarily expend time and money, as she went to the library to type and print the letter and spent money to mail it.” After the defendant filed a motion to dismiss, the court certified a class in the case. Since both sides had engaged in discovery, the court treated the defendants’ motion as one for summary judgment and concluded that the plaintiff did not demonstrate a concrete harm. The judge granted the defendant’s motion to dismiss, noting that the plaintiff’s “injury—spending time and money in an attempt to clear up her confusion concerning whether she had validly disputed the debt—is analogous to injuries arising from consultations with lawyers or filing suit, which the Seventh Circuit has held do not amount to concrete harm.”
As previously covered by Infobytes, the Seventh Circuit earlier this year held that a consumer’s alleged “stress and confusion” did not constitute a concrete and particularized injury under the FDCPA after the plaintiff alleged that the defendant debt collector violated the FDCPA when it directly communicated with her by sending a dunning letter related to unpaid debt even though she had previously notified the original lender that she was represented by counsel and requested that all debt communications cease. In that case, the Seventh Circuit held that the consumer’s allegations—that the dunning letter caused her “stress and confusion” and “made her think that ‘her demand had been futile’”—did not amount to a concrete and particularized “injury in fact” necessary to establish Article III standing under the FDCPA. The court further noted that “the state of confusion is not itself an injury”—rather, for the alleged confusion to be concrete, “a plaintiff must have acted ‘to her detriment, on that confusion.’”
On August 18, the CFPB denied a petition by a debt collection company to set aside a civil investigative demand (CID) issued by the Bureau in May. The CID requested information regarding whether debt buyers, debt collectors or persons associated with selling or collecting debt, have “made false or misleading representations to consumers or third parties in a manner that is unfair, deceptive, or abusive,” in violation of the CFPA, among other things. The company petitioned the Bureau on May 26 to set aside the CID, arguing, among other things, that the CID (i) “fails to identify sufficiently the nature of the conduct under investigation”; (ii) “fails to provide [the company] with any notice whatsoever of any potential witnesses or participants who may be necessary to respond to the CID”; and (iii) is overbroad and unduly burdensome.
In rejecting the company’s arguments described above, the Bureau found that: (i) “the Bureau’s notification of purpose identifies the nature of the conduct under investigation and is therefore not ‘too indefinite’”; (ii) it is not required that the Bureau provide any notice any potential witnesses or participants who may be necessary to respond to the CID; and (iii) the CFPB holds “broad authority to seek information which may be relevant to its investigations.”
On August 25, the U.S. District Court for the District of New Jersey denied a defendant debt collector’s motion to compel arbitration in an FDCPA action, ruling that the defendant never purchased the rights to enforce arbitration. In so holding, the Court stated that the words “accounts” and “receivables” mean different things and that purchasing a receivable does not guarantee all the rights assigned to the account. The court originally denied the defendant’s motion to compel arbitration to allow for limited discovery to determine whether a valid arbitration agreement existed between the parties. The defendant argued that the agreements governing the accounts require that all claims be subject to arbitration on an individual basis and that it is entitled to arbitration since it is an agent of the purchasing creditor and the purchasing creditor purchased the rights to enforce arbitration from the original creditor. The plaintiffs countered that the right to compel arbitration was not transferred because the purchase agreements only transferred the rights under the “receivables” and not the “accounts.” The court agreed, noting that under the plain meaning of the purchase agreements, the purchasing creditor did not purchase, and was not assigned, the right to compel arbitration.
On August 25, the U.S. District Court for the Eastern District of Missouri granted a motion for judgment on the pleadings in favor of a defendant debt collector over a plaintiff alleging FDCPA violations. The plaintiff, a bankruptcy attorney who represents consumers in connection with discharging their debts, received a letter from defendant that disclosed a debt for a consumer he did not represent and has never represented. The plaintiff sued under the FDCPA, claiming that the defendant, among other things, engaged in abusive, deceptive, and unfair debt collection practices when defendant disclosed the existence of this third-party debt to the plaintiff by contacting him via letter. The plaintiff alleged that he was injured and suffered damages “due to the time Plaintiff had to spend trying to learn why he was being contacted and whether he had ever represented Plaintiff.” However, the court held that because the plaintiff was not a “consumer” under the FDCPA, he did not have standing to bring the FDCPA case. In so ruling, the court noted that the U.S. Court of Appeals for the Eighth Circuit has not yet ruled on whether the FDCPA “applies to persons other than a consumer[‘]” but agreed “with the greater weight of authority that concludes” only consumers have standing to bring such actions.
On September 1, the CFPB published a proposal in the Federal Register to withdraw its proposed rule that would have extended the effective date of its final rules amending Regulation F, which implements the FDCPA. As previously covered by InfoBytes, in April, the Bureau proposed delaying the effective date by 60 days to provide affected parties additional time to comply due to the ongoing Covid-19 pandemic. However, the Bureau determined that an extension is unnecessary and will publish a formal notice in the Federal Register, withdrawing the April notice of proposed rulemaking (covered by InfoBytes here). According to the Bureau, industry comments generally did not support an extension, and “[m]ost industry commenters stated that, despite the pandemic, they would be prepared to comply with the Debt Collection Final Rules by November 30, 2021.”
On August 23, a magistrate judge of the U.S. District Court for the District of Colorado granted a defendant’s motion for summary judgment, ruling pursuant to the “least sophisticated consumer standard” that the debt collection letter accurately conveyed the subject FDCPA rights. The plaintiff alleged the defendant debt collector’s letter violated several sections of the FDCPA by, among other things, making false and misleading representations in violation of Section 1682e by informing the plaintiff that “calling for further information or making a payment is not a substitute for disputing the debt” because it implied that disputing the debt was mandatory instead of optional. Additionally, the plaintiff contended that this language overshadowed and contradicted the required disclosure on the second page of the letter by “suggest[ing] that disputing the debt was mutually exclusive to making a payment”—an alleged violation of Section 1692g. The defendant moved for summary judgment, arguing that the plaintiff lacked standing to sue, or in the alternative, that he lacked sufficient evidence to prove his FDCPA claims.
The court disagreed, ruling that the plaintiff’s alleged injuries (that the FDCPA violation caused him to not pay his debt and that he lost out on the ability to make payments or to, among other things, negotiate a separate payment plan) did not rise to the level of tangible harm necessary to satisfy Article III standing. The court then reviewed the letter’s disclosures under the least sophisticated consumer standard and determined that “it is one thing to say that making a payment and disputing a debt are different, and another entirely to suggest that they are mutually exclusive. The phrase, ‘IS NOT A SUBSTITUTE FOR,’ does not carry any reasonable implication of exclusivity, and in fact demonstrates, when read in full context, that Defendant is informing Plaintiff that making a payment does not take the place of disputing the debt. In other words, both can be pursued without exclusivity.” Moreover, because the language is not misleading or contradictory, the court ruled that it did not overshadow the second-page disclosure, which informed him of his right (but not obligation) to dispute the debt.
On August 17, the U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s decision in granting a plaintiff summary judgment, finding that the debt collector (defendant) violated the FDCPA by allegedly attempting to collect a debt despite receiving written notice disputing the debt, and by allegedly calling the defendant despite receiving a “cease-and-desist letter.” According to the opinion, the plaintiff allegedly incurred a medical debt that was placed with the defendant for collection, in which the defendant sent a letter on April 25 to the plaintiff seeking payment of the debt. On April 30, the defendant called the plaintiff and left a voice message. Subsequently, the defendant received a letter from the plaintiff on May 7 disputing the debt and demanding that the defendant cease calling, and that future correspondence should be in writing. However, the letter was not documented into the defendant’s system until May 10; meanwhile, on May 8, the defendant placed another call to the plaintiff, leaving another voice message. The plaintiff filed suit, alleging the defendant violated Section 1692g(b) of the FDCPA “by attempting to collect the debt despite receiving her written notice disputing the debt” and Section 1692g(c) of the FDCPA “by continuing to call her despite receiving her cease-and-desist letter.” The district court ruled that the plaintiff violated the FDCPA and the defendant’s bona fide error defense did not excuse the FDCPA violations, emphasizing that “the bona fide-error defense is an affirmative one, requiring that [the defendant] prove the prongs of the defense, not that [the plaintiff] disprove them.”
On appeal, the 10th Circuit agreed with the district court and cited TransUnion v. Ramirez, where the U.S. Supreme Court clarified the Spokeo standing requirements, including that the tort of intrusion upon seclusion is recognized as an intangible harm providing a basis for a lawsuit in American courts (covered by InfoBytes here). According to the opinion, in consideration of the FCRA, “the TransUnion Court noted that a company’s maintaining incorrect information in its database, absent dissemination to a third party, failed to create a harm bearing a close relationship to the common-law tort of defamation.” Further, “[w]ithout the ‘necessary’ defamation component that the tortious words were published, this harm differed in kind.” The appellate court pointed out that “this analysis doesn’t control the case at question because the plaintiff alleged the necessary components for a common-law intrusion-upon-seclusion tort.” The appellate court further affirmed that the phone call that was placed after the cease-and-desist letter was received is considered enough to confer standing for the plaintiff to sue. The 10th Circuit held, “[t]hough a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law—an unwanted intrusion into a plaintiff’s peace and quiet.”
On August 12, the Georgia Attorney General announced that it entered an assurance of voluntary compliance with a debt collection company resolving allegations that the company committed multiple violations of the FDCPA and the Georgia Fair Business Practices Act. According to the AG, the company deceived consumers by, among other things: (i) threatening consumers with jailtime if a debt was not paid; (ii) failing to disclose that they were debt collectors; and (iii) failing to provide consumers, within five days after the initial communication, a written notice containing certain information required by law. Under the settlement, the company must cease collections on all Georgia consumer accounts it owns and turn those accounts over to the AG, which represents over $19.8 million in purported consumer debt. In addition, the company must pay $41,500 in penalties and fees, and fully comply with the FDCPA and the Georgia Fair Business Practices Act. Finally, if the company violates any provisions of the settlement during a three-year monitoring period, it must immediately pay an additional $41,500 payment to the state.
On August 16, the U.S. Court of Appeals for the Sixth Circuit held 2-1 that a plaintiff lacked Article III standing to bring claims against a debt servicer defendant for allegedly violating the FDCPA by failing to properly identify itself in voice messages. The plaintiff filed suit in 2019 alleging violations of three FDCPA provisions, including that the defendant: (i) failed to identify itself as a debt collector in its voice messages; (ii) failed to identify the “true name” of its business, thus causing the plaintiff to send a cease-and-desist letter to the wrong entity; and (iii) placed calls without meaningfully disclosing its identity. The district court granted summary judgment in favor of the defendant, ruling that because the defendant did not qualify as a “debt collector” under the FDCPA it was not subject to the statute’s requirements.
On appeal, the 6th Circuit raised the issue of standing “for the first time on appeal,” concluding that the plaintiff “does not automatically have standing simply because Congress authorizes a plaintiff to sue a debt collector for failing to comply with the FDCPA.” Pointing out that the appeal “centers on whether [the plaintiff] suffered a concrete injury,” the appellate court rejected the plaintiff’s arguments that the defendant’s statutory violations constituted a “concrete injury” and “that the confusion he suffered, the expense of counsel, and the phone call that he received from [the defendant] qualify as independent concrete injuries.” Among other things, the 6th Circuit noted that although the plaintiff claimed that the FDCPA “created an enforceable right to know who is calling about a debt and that [the defendant’s] failure to identify its full name concretely injured him,” the plaintiff ultimately failed to demonstrate that the defendant’s “failure to disclose its full identity in its voice messages resembles a harm traditionally regarded as providing a basis for a lawsuit.” Additionally, the appellate court determined that “confusion alone is not a concrete injury for Article III purposes,” and that the plaintiff “cannot show concrete harm simply by pointing to the cost of hiring counsel.” Moreover, because the plaintiff “did not clearly assert in his complaint that he received—let alone was harmed by—an additional phone call, [the appellate court] need not decide whether an unwanted call might qualify as a concrete injury.” The 6th Circuit vacated the district court’s order entering summary judgment and remanded the case to be dismissed for lack of jurisdiction.
On August 4, the U.S. District Court for the Western District of Wisconsin granted defendants’ motion for partial summary judgment in an action alleging claims under the FDCPA and the Wisconsin Consumer Act (WCA). The defendants were a debt-purchasing company and a law firm hired by the company to recover outstanding debt and purported late fees on the plaintiff’s account in a separate state-court action. After the plaintiff failed to make payments on his outstanding balance, the original creditor (a national bank) charged late fees and mailed him a “right to cure” letter advising him of the minimum payment due and the deadline to make the payment. The account was eventually sold to the debt-purchasing company after the plaintiff failed to make any minimum payments. The law firm sent the plaintiff two letters on behalf of the debt-purchasing company, one which outlined his right to dispute the debt and one which provided a “notice of right to cure default.” A small claims action was filed against the plaintiff in state court, in which the plaintiff argued for dismissal, contending in part that the notice of default failed to itemize delinquency charges as required under Wisconsin law. The plaintiff then filed this suit in federal court alleging violations of the FDCPA and the WCA, claiming that the defendants “falsely represented the status of his debt in violation of § 1692e by purporting to have properly accelerated his debt and filed suit against him despite [the plaintiff] never being provided an adequate right to cure letter pursuant to Wisconsin law.”
First, in reviewing whether the plaintiff had standing to sue, the court determined that the “costs, time, and energy” incurred by the plaintiff to defend himself in the state-court action amounted to a “concrete injury in fact” that established his standing in the federal-court action. However, upon reviewing the WCA’s right-to-cure provisions as the basis for the plaintiff’s claims that the defendants violated federal and state laws by allegedly falsely representing that they could accelerate the plaintiff’s debt and sue him, the court examined whether the state law’s notice and right-to-cure provisions were federally preempted by the National Bank Act (NBA), as the original creditor’s rights and duties were assigned to the debt-purchasing company when the account was sold. The court determined that while the WCA right-to-cure provisions “do relate in part to debt collection,” they also “go beyond that by imposing conditions on the terms of credit within the lending relationship.” The court ultimately concluded that the WCA provisions “are inapplicable to national banks by reason of federal preemption,” and, as such, the court found “that a debt collector assigned a debt from a national bank is likewise exempt from those requirements” and was not required to send the plaintiff a right-to-cure letter “as a precondition to accelerating his debt or filing suit against him.”
- Jeffrey P. Naimon to discuss “Section 1071: Small business data collection & fair lending” at the American Bar Association Consumer Financial Services Winter Meeting 2022
- Jonice Gray Tucker to discuss “Getting your company ready: Managing fair lending for IMBs” at the Mortgage Bankers Association Independent Mortgage Bankers Conference
- Jonice Gray Tucker to discuss “Be Your Compliance Best in 2022” at the California Mortgage Bankers Association webinar
- Lauren R. Randell to discuss “Significant legal developments in the Northeast” at the 37th Annual National Institute on White Collar Crime
- Jonice Gray Tucker to discuss “Small business & regulation: How fair lending has evolved & where it is heading?” at the Consumer Bankers Association Live program