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FDCPA Statute of Limitations

Rotkiske v Klemm, 2019 WL 6703563 (U.S. Dec. 10, 2019). The Supreme Court affirmed the Third Circuit’s en banc ruling that, absent the application of an equitable doctrine, the FDCPA’s one-year statute of limitations runs from when the violation occurs, not when the consumer discovers the violation. The limited nature of this holding and alternatives to bringing debt collection harassment claims within the applicable limitations period is examined in another NCLC article, Supreme Court Clarifies FDCPA Statute of Limitations.

Benzemann v. Houslanger & Assoc., 924 F.3d 73 (2d Cir. 2019), cert. denied, 140 S. Ct. 82 (2019), reaches a similar result. Clarifying its prior holding in Benzemann I, the appeals court held that “an FDCPA violation occurs, triggering the statute of limitations, when an individual is injured by unlawful conduct.” In so holding, the court rejected the consumer’s argument that the statute of limitations on an FDCPA claim should run from the date that the consumer has notice of a statutory violation.

The court concluded that it need not decide if the case was timely under the common law discovery rule because more than a year had elapsed since the consumer discovered the injury. The court also rejected the equitable tolling doctrine, concluding that the consumer did not diligently pursue their rights and there were no extraordinary circumstances preventing timely filing of the FDCPA lawsuit.

For a discussion of all issues relating to the FDCPA’s statute of limitations, see NCLC’s Fair Debt Collection § 12.3.

FDCPA Coverage

Barbato v. Greystone Alliance, L.L.C., 916 F.3d 260 (3d Cir. 2019), cert. denied sub nom. Crown Asset Management, L.L.C. v. Barbato, 140 S. Ct. 245 (2019). The Third Circuit found that the debt buyer, Crown Asset Management, is a debt collector under the principal purpose prong, holding that, “an entity that otherwise meets the ‘principal purpose’ definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting.”

Burton v. Kohn Law Firm, S.C., 934 F.3d 572 (7th Cir. 2019). The appeals court upheld a lower court decision granting summary judgment for the collector on §§1692d and 1692e claims where consumer, who denied that the debt was theirs, failed to present sufficient evidence that the alleged debt was a consumer debt. Specifically, the court rejected five pieces of evidence: (1) the consumer’s statements in his complaint; (2) defendant’s use of FDCPA disclaimers in collection letters; (3) collector’s description of consumer debt collection services on their website; (4) hearsay statement by an employee of the original creditor that this was a consumer account; and (5) billing statements listing purchases made on the credit card, including purchases for gas and pizza.

Pinson v. JPMorgan Chase Bank, N.A., 942 F.3d 1200 (11th Cir. 2019). The Eleventh Circuit affirmed dismissal of pro se consumer’s FDCPA claim because consumer did not plausibly allege that JPMorgan Chase was a debt collector. JPMorgan Chase did not qualify for coverage under § 1692a(6) because even though it was using a false name on the consumer’s credit report (Chase Home Finance), the court concluded that the least sophisticated consumer would understand that these were related parties and not believe that an unrelated third party was collecting the mortgage debt that the consumer originated with JPMorgan Chase.

For a discussion of all issues relating to the FDCPA coverage, see NCLC’s Fair Debt Collection Chapter 4.

Validation Notices

Lavallee v. Med-1 Solutions, L.L.C., 932 F.3d 1049 (7th Cir. 2019). Debt collector emailed hyperlinks to consumer in two separate emails that, after clicking through multiple screens, led to a pdf of the validation notices. Consumer never opened the emails and only learned of alleged debts when speaking to the hospital about another account. Consumer spoke to the debt collector who did not provide validation notices during or after the call even though its records indicated that consumer never accessed the validation notice online. Consumer sued for failure to provide a validation notice pursuant to § 1692g(a).

The appeals court affirmed summary judgment for the consumer and denial of summary judgment for the debt collector. The court concluded that the emails to the consumer were not communications because the fact that the name and email address of the debt collector did not on its own “imply” the existence of a debt. The court also concluded that the email violated § 1692g(a) because it failed to provide the required disclosures and providing a means to access the disclosures via a “digital pathway” was not enough.

Distinguishing its decision in Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir. 2019), the Seventh Circuit found that the consumer had standing to sue here because the “complete deprivation of § 1692g(a) disclosures and the fact that she was sued without the benefit of mandatory § 1692g(a) disclosures lends concreteness to her injury.” The court also advised that the “FDCPA plaintiff should include an allegation of concrete harm in his complaint.”

Kolbasyuk v. Capital Mgmt. Services, L.P., 918 F.3d 236 (2d Cir. 2019). Affirming dismissal of the consumer’s complaint, the Second Circuit held that the collector satisfied § 1692g(a)(1) by stating the current amount due and that it need not specify the portion of this amount that is principal, what “other charge” might apply, or whether there is interest accruing and the rate of any applicable interest. The court distinguished its ruling in Carlin v. Davidson Fink L.L.P., 852 F.3d 207 (2d Cir. 2017), which involved an estimate of the total amount due rather than a statement of the actual current amount due.

The Second Circuit also affirmed dismissal of the consumer’s § 1692e claim, concluding that the least sophisticated consumer could not reasonably read the notice and be confused about the fact that the balance might increase. The court reaffirmed that a debt collector using the safe harbor language in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000), as the collector did here, protects the collector from an allegation that they failed to disclose that the consumer’s balance might increase as the result of interest and fees.

Koehn v. Delta Outsource Group, Inc., 939 F.3d 863 (7th Cir. 2019). The Seventh Circuit affirmed the dismissal of consumer’s claim that collector had violated § 1692g(a)(1) by referring to the “current balance” in a collection letter. Even though the amount of the debt could not have increased, the court held that, absent additional language in the dunning letter like a “directive to call for a ‘current balance,’” the language means “the balance owed.”

Smith v. Simm Assoc., Inc., 926 F.3d 377 (7th Cir. 2019). The Seventh Circuit affirmed the lower court’s decision granting summary judgment for the collector on consumer’s claim that collector had violated § 1692g(a)(2) by identifying an “original creditor” rather than a “current creditor.” Noting that the statute did not require the collector to use specific terminology to identify the “creditor,” that the collection letter identified the creditor to whom the debt was owed, and that the collection letter also provided the commercial name that the consumer was more likely to recognize, the court found no violation of § 1692g(a)(2).

Dennis v. Niagara Credit Sols., Inc., 946 F.3d 368 (7th Cir. 2019). The Seventh Circuit affirmed judgment on the pleadings for the debt collector holding that listing both a “current” and an “original” creditor did not violate § 1692g(a)(2). The court concluded that an unsophisticated consumer would understand that the current creditor purchased the debt from the original creditor because this was a “basic inference” that unsophisticated consumers are able to make and § 1692g(a)(2) did not require the debt collector to explain the relationship between the two parties since it only requires clear identification of the current creditor.

For a discussion of all issues relating to the FDCPA’s verification requirement, see NCLC’s Fair Debt Collection Chapter 9.

Collection of a Debt Barred by the Statute of Limitations

Holzman v. Malcolm S. Gerald & Assoc., Inc., 920 F.3d 1264 (11th Cir. 2019). Reversing the district court’s dismissal of the consumer’s § 1692e claim, the Eleventh Circuit held that the consumer stated a plausible claim that an offer to “resolve” a time-barred debt at a discount presented with a deadline to accept the offer and a warning that it might not be extended would, taken together, mislead an unsophisticated consumer. In so ruling, the court joined the Third, Fifth, Sixth, and Seventh Circuits, which have all held that a collection letter seeking payment on a time-barred debt need not explicitly threaten litigation to state a claim for relief under § 1692e so long as such a claim can be inferred. The court declined to distinguish offers to “settle” time-barred debt in those cases from the offer to “resolve” the time-barred debt at issue here.

Noting that courts have generally found that there is no bright-line rule prohibiting collection of time-barred debts, the Eleventh Circuit affirmed dismissal of the consumer’s § 1692f claims based on the allegations that the practice of attempting to collect time-barred debts is per se unfair or unconscionable.

Stimpson v. Midland Credit Mgmt., Inc., 944 F.3d 1190 (9th Cir. 2019). The Ninth Circuit affirmed summary judgment for the debt collector on the consumer’s claim that the debt collector’s validation notice violated § 1692e.

First, the court held that the phrase “will not sue” in the time-barred debt disclosure was not deceptive or misleading. The court concluded that the least sophisticated consumer would understand that the debt collector cannot take a legal action—rather, it simply chooses not to take a legal action—because the second sentence of the disclosure stated that “[t]he law limits how long you can be sued on a debt.”

Second, the court held that the letter was not deceptive or misleading because the time-barred debt disclosure failed to warn consumers about the possibility of reviving the statute of limitations because nothing in the FDCPA requires debt collectors to make such a disclosure.

Finally, the court rejected the argument that the letter was deceptive and misleading because it would prevent the least sophisticated consumer from realizing that they don’t have to pay. The court concluded that “there is nothing inherently deceptive or misleading in attempting to collect a valid, outstanding debt, even if it is unenforceable in court.”

For analysis of collecting on time-barred debt as an FDCPA violation, see NCLC’s Fair Debt Collection § 8.3.1.

Collection of an Unauthorized Amount

Sparks v. EquityExperts.org, L.L.C., 936 F.3d348 (6th Cir. 2019). The Sixth Circuit affirmed summary judgment for the collector on consumer’s § 1692e(2)(A) and § 1692f(1) claims, rejecting the consumers’ argument that debt collector was collecting fees directly from them without authorization. The Sixth Circuit held that the declaration of the homeowner’s association did authorize the collection of such fees because the term “costs” included costs of collection.

Klein v. Credico Inc., 922 F.3d 393 (8th Cir. 2019). The Eighth Circuit affirmed dismissal of consumer’s claim that the collector violated § 1692f(1) because the collection letter was signed by someone who was not licensed to collect debts in Minnesota. Noting that not all violations of state collection laws are a violation of the FDCPA, the court also noted that the other two individuals and the debt collection company itself were all licensed to collect debts.

Finally, the court affirmed dismissal of the consumers § 1692f(1) claim based on the letter’s reference to possible pre-judgment interest. The Eighth Circuit held that pre-judgment interest was possible under one state statute so there was no plausible claim for a § 1692f(1) violation.

Bernal v. NRA Group, L.L.C., 930 F.3d 891 (7th Cir. 2019). The Seventh Circuit upheld a verdict for a collector following a bench trial to interpret the language in a contractual agreement allowing recovery of “any costs (including reasonable attorney’s fees) incurred by us in attempting to collect amounts due,” finding no violation of § 1692f(1). Disagreeing with the Eighth and Eleventh Circuits, the Seventh Circuit held that the contractual language at issue permitted a percentage based collection fee (here 25%) that was not related to actual costs incurred. Moreover, the court ruled that the contractual language allowed the collection of fees that had not yet been incurred.

For a discussion of the FDCPA prohibition on collecting an amount not permitted by law or contract, see NCLC’s Fair Debt Collection § 8.4.

Misleading or Deceptive Communications

Rhone v. Med. Bus. Bureau, L.L.C., 915 F.3d 438 (7th Cir. 2019). Plaintiff alleged that defendant misstated the “character” of her debt in violation of § 1692e(2)(A) by reporting to a credit bureau that she had nine unpaid bills of $60 rather than one unpaid bill of $540. Reversing summary judgment for the plaintiff, the Seventh Circuit held that “character” refers to the “kind of obligation” and did not apply to the number of transactions between a consumer and a single merchant because this “does not affect the genesis, nature, or priority of the debt.”

Klein v. Credico Inc., 922 F.3d 393 (8th Cir. 2019). The Eighth Circuit affirmed dismissal of consumer’s claim that collector violated § 1692e(14) by using an acronym and referring to itself as “Professional Debt Collectors” in a letter that also included the collector’s registered name and other contact information and where the collector used a “common sense abbreviation.”

Heredia v. Capital Mgmt. Servs., L.P., 942 F.3d 811 (7th Cir. 2019). The Seventh Circuit reversed dismissal of consumer’s § 1692e claim where the debt collector’s letter stated that it “may file a 1099C form” but all settlement offers were for a reduction of less than $600 and thus would not require a 1099C. The consumer alleged, and debt collector did not dispute, that it would not file a 1099C form if not required to do so by law.

For a general discussion of FDCPA’s prohibition on deceptive representations, see NCLC’s Fair Debt Collection Chapter 7.

Improper Information Found on Envelope Sent by Debt Collector

DiNaples v. MRS BPO, L.L.C., 934 F.3d 275 (3d Cir. 2019). This case involves a QR code printed on the face of a collection letter, which anyone could scan to reveal the collector’s reference number for that account. The court first determined that the plaintiff had standing because disclosure of the account number “implicates core privacy concerns” and is sufficiently concrete to satisfy the injury-in-fact prong of standing. The Third Circuit held that disclosing a QR code with the account number on the face of the envelope violates § 1692f(8), affirming the district court’s decision granting summary judgment. In so ruling, the court declined to distinguish QR codes from an account number that appears directly on the face of the envelope, as in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014), because “[a] QR code is still ‘susceptible to privacy intrusions,’ even if it does not facially display any ‘core information relating to the debt collection.’” The court held that the bona fide error defense was inapplicable here because the collector’s error was legal, not factual.

For more on the FDCPA limitations on what can appear on the envelope sent by a collector, see NCLC’s Fair Debt Collection § 8.9.

FDCPA Relationship to Bankruptcy Code

In re Roth, 935 F.3d 1270 (11th Cir. 2019). The Eleventh Circuit held that the FDCPA’s “least sophisticated consumer” standard does not apply in the bankruptcy context to determine whether a violation of a discharge injunction has occurred.

The relationship of the FDCPA and the Bankruptcy Code and bankruptcy practice raises a number of issues, examined in detail at see NCLC’s Fair Debt Collection Chapter 13.

Individual Liability for Corporate Actions

Fed. Trade Commission v. Moses, 913 F.3d 297 (2d Cir. 2019). The Second Circuit affirmed summary judgment against a co-owner of thirteen debt collection enterprises for violations of the Federal Trade Commission Act (FTCA) and the FDCPA, concluding that there was ample evidence to support individual liability for the actions of the corporate defendants.

For a discussion of various parties liable for FDCPA violations, NCLC’s Fair Debt Collection §§ 2.7, 2.8.

Standing

Casillas v. Madison Avenue Assoc., Inc., 926 F.3d 329 (7th Cir. 2019). The Seventh Circuit affirmed the district court’s dismissal of a class action based on a violation of § 1692g for failing to specify in the validation notice that a dispute or request for original creditor information must be in writing. Noting that the class representative did not allege that she tried to dispute the debt, the Seventh Circuit concluded that the consumer could not satisfy the injury-in-fact element of standing based simply on the omission of the statutorily required language without an allegation that she was harmed or faced a real risk of harm as a result of that omission. In so ruling, the court stated in a footnote that the “unsophisticated consumer” standard “is a rule for interpreting a debt-collection letter to determine whether it is misleading ... not a rule permitting those who have been injured to vindicate the rights of those who have.”

This decision created a conflict with the Sixth Circuit, which recently decided Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747 (6th Cir. 2018). Although the majority of Seventh Circuit judges declined to hear the case en banc, three judges filed an opinion dissenting from the en banc denial.

Article III standing to bring FDCPA cases is thoroughly presented at NCLC’s Fair Debt Collection § 11.10.

Res Judicata

Horia v. Nationwide Credit & Collection, Inc., 944 F.3d 970 (7th Cir. 2019). Reversing dismissal by the lower court, the Seventh Circuit concluded that claim preclusion (res judicata) did not bar the consumer’s second FDCPA lawsuit against a debt collector for § 1692e(8) violations. The two FDCPA lawsuits were based on the collection of different alleged debts, different dispute letters by the consumer, and two separate allegations that the debt collector failed to report the dispute to the credit bureau. The court concluded that, “[d]isputes that have an independent existence may be litigated separately.”

In dicta, the Seventh Circuit outlined multiple defenses that the debt collector could raise, including arguing: that the terms of the settlement in the first FDCPA lawsuit covered the second FDCPA lawsuit; that the court should award less in statutory or actual damages since the same sort of harm was involved in both cases and the consumer might have difficulty proving a marginal injury in the second case; or that the second lawsuit was brought to harass under § 1692k(a)(3).

Res judicata issues involving the FDCPA are examined at NCLC’s Fair Debt Collection § 12.5.

Bona Fide Error Defense

Abdollahzadeh v. Mandarich Law Group, L.L.P., 922 F.3d 810 (7th Cir. 2019). Collection law firm used date of last attempted payment to calculate statute of limitations. However, the last attempted payment did not clear and the date of the last successful payment meant that the account was time-barred when collector sued in state court. The Seventh Circuit upheld the district court decision granting summary judgment to the collector on the consumer’s §§1692e and 1692f claims, concluding that the collector satisfied the elements of a bona fide error defense.

Reaffirming that defendants can only invoke the bona fide error defense for an error of law, not an error of fact, the court concluded that the factual mistake was using the wrong date of last payment in its statute of limitations analysis. The court concluded that the error was unintentional despite that the fact that the collection law firm opposed dismissal of the state court lawsuit after learning that the debt was time-barred because the collection law firm “determined that it had a good-faith basis to oppose the dismissal motion.”

The court rejected the consumer’s argument that the collector should not have relied on information provided by the debt buyer to the collection attorney where the debt buyer disclaimed the accuracy of the information provided, stating that “the FDCPA does not require collectors to independently verify the validity of the debt to qualify for the ‘bona fide error’ defense.” Hyman v. Tate, 362 F.3d 965, 968 (7th Cir. 2004). The court also noted that any impact of the general disclaimer of accuracy in the retainer agreement was “displaced” by the affidavit that the debt buyer provided to the collection law firm that attested to the accuracy of the information.

The court concluded that the collection law firm’s procedures were reasonably adapted to avoid the error where: the law firm relied on information provided by its debt buyer client; account data was automatically scrubbed for out-of-statute debt; the debt buyer provided an affidavit; and a collection attorney examined the account to check for time-barred debt.

The FDCPA bona fide error defense is examined at NCLC’s Fair Debt Collection § 12.2.

Class Actions

Sellers v. Rushmore Loan Mgmt. Servs., L.L.C., 941 F.3d 1031 (11th Cir. 2019). In a class action involving mortgage collection letters sent post-bankruptcy discharge, the Eleventh Circuit concluded that the district court abused its discretion by not certifying the class on a predominance theory when it incorrectly categorized the question—whether the Bankruptcy Code precludes or preempts FDCPA claims under § 1692e(2)(A)—as presenting an individual rather than a common issue.

FDCPA class action requirements are examined at NCLC’s Fair Debt Collection § 11.7.

Consumer’s Attorney Fees

Paz v. Portfolio Recovery Assoc., 924 F.3d 949 (7th Cir. 2019). The Seventh Circuit affirmed the district court’s rejection of consumer’s request for $187,410 in fees, concluding that the lower court’s award of $10,875 was reasonable in light of the collector’s Rule 68 offer of $3,501 prior to trial and the fact that the jury only awarded $1,000 in statutory damages and no actual damages on consumer’s FDCPA claim at trial.

FDCPA attorney fees for the consumer are considered at NCLC’s Fair Debt Collection § 11.9.

Author Name: 
April Kuehnhoff
About Author: 

April Kuehnhoff is a staff attorney in the National Consumer Law Center’s Boston office, where she advocates for fair debt collection. She is the co-author of NCLC’s Fair Debt Collection and a contributing author to Surviving Debt. Prior to joining NCLC, Ms. Kuehnhoff was an associate at Shapiro Haber & Urmy LLP, a law clerk for the Honorable Justice Gary Katzmann at the Massachusetts Appeals Court, and a Skirnick Public Interest Fellow at the Cambridge and Somerville Legal Services office of Greater Boston Legal Services. She is a graduate of Wellesley College and Harvard Law School.

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Wednesday, January 29, 2020
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