Skip to main content

Search

Federal Deception Law: 6.3.4.2 Analyzing a Dialer’s “Capacity”

The TCPA’s requirement of consent for calls made with an ATDS does not focus on how the device produced, stored, or dialed the particular telephone number that was called, but rather requires that the device have the “capacity—(A) to store or produce numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”175

Federal Deception Law: 6.3.4.3.1 A predictive dialer is likely to use a random or sequential number generator to store or produce telephone numbers to be called

Most pre-Facebook interpretations of the role of a random or sequential number generator in the ATDS definition focused on whether the resulting telephone numbers themselves were random or sequential numbers. However, when read carefully, the statutory definition does not include such a requirement. The definition only requires that the device use a random or sequential number generator to store or produce telephone numbers to be called. In other words, the numbers that are randomly or sequentially generated need not be the telephone numbers themselves.

Federal Deception Law: 6.3.4.3.3 Legislative history and the purpose of the TCPA’s autodialer restriction

Callers might object to this interpretation on the basis that the Facebook decision refers to the sequential number generator portion of the ATDS definition as targeted toward equipment that ties up multiple lines of a business simultaneously,210 which might imply that a device is an ATDS only if it produces consecutive telephone numbers. However, the Court never represented this concern as the only problem that the restrictions on autodialers were intended to address.

Mortgage Servicing and Loan Modifications: 8.2.1 Overview

The National Housing Act requires lenders to engage in loss mitigation upon the default or imminent default of an FHA-insured mortgage.5 While the Department of Housing and Urban Development (HUD) does not guarantee an alternative for foreclosure for every FHA-insured borrower, lenders must review all loans for possible alternatives to foreclosure.6 A lender may proceed to foreclosure only after ensuring that it has met all of its servicing obligations and the loan is at least three months past due.

Mortgage Servicing and Loan Modifications: 12.3.6.1 Overview

The Department of Housing and Urban Development (HUD) has provided expanded relief for borrowers who have Federal Housing Administration (FHA)-insured loans and face COVID-19 hardships. As with its standard loss mitigation program, HUD generally makes COVID-19 policy updates through mortgagee letters, which communicate program updates to servicers. HUD periodically incorporates its COVID-19 updates into Handbook 4000.1. However, this section will cite to the mortgagee letters.

Mortgage Servicing and Loan Modifications: 8.2.2.1 Generally

FHA’s loss mitigation program has evolved dramatically, both in terms of the available options and the eligibility rules. Advocates will continue to represent borrowers who have been denied under former rules or who have defaulted on loan modifications made through poorly designed and obsolete programs. In litigation, lender attorneys routinely mention borrowers’ past failures in order to excuse their clients’ noncompliance.

Fair Debt Collection: 11.15.11b Redressability

The third requirement for Article III standing articulated by Supreme Court decisions is that the plaintiff’s injury must be one “that is likely to be redressed by a favorable judicial decision.”2128 An unpublished Seventh Circuit opinion holds that an FDCPA plaintiff’s failure to pray explicitly for actual damages did not mean that her injury, which included a modest expenditure for postage, was not redressable by a favorable decision.

Fair Debt Collection: 11.15.12a Pleading

Before filing an FDCPA complaint, it is important to interview the consumer carefully to identify any harm the consumer suffered beyond experiencing the violation.2126 A very small loss may be sufficient to establish standing.2127

Fair Debt Collection: 11.15.2.2.4 The role of Congress’s judgment

Spokeo very clearly holds that “the judgment of Congress” plays an “important role[]” in determining whether an intangible injury is concrete.1485 The decision holds that, “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.”1486 It quotes with approval two of its earlier decisions, holding that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de

Fair Debt Collection: 11.15.2.2.6 Is the risk of harm a concrete injury?

Ramirez appears to cut back on the principle that Spokeo seemed to adopt, that “the risk of real harm” can be a concrete injury in a suit seeking money damages.1500 Where there is only a risk of harm, the majority opinion in Ramirez states that standing is confined to suits seeking prospective relief, such as an injunction.1501 This statement appears to be dicta, because the Court concluded on the facts that the plaintiffs

Fair Debt Collection: 11.15.3.4.2a Confusion

Some courts have held that confusion due to a misleading or unclear collection communication is a concrete injury1706 Ramirez adds some weight to this view, in that it cites the fact that the plaintiffs, other than Ramirez himself, did not present any evidence “that they were confused, distressed, or relied on the information in any way” as support for its conclusion that the plaintiffs had not alleged a concret

Fair Debt Collection: 11.15.3.4.2a Confusion

Some courts have held that confusion due to a misleading or unclear collection communication is a concrete injury1723 Ramirez adds some weight to this view, in that it cites the fact that the plaintiffs, other than Ramirez himself, did not present any evidence “that they were confused, distressed, or relied on the information in any way” as support for its conclusion that the plaintiffs had not alleged a concret