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Fair Debt Collection: 11.15.5.2.1 The purposes behind FDCPA § 1692g’s disclosure requirements

The rights and obligations established by FDCPA § 1692g were considered by the Senate at the time of passage to be a “significant feature” of the Act.1920 “This provision [FDCPA § 1692g] will eliminate the recurring problem of collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.”1921 Congress enacted section 1692g to protect debtors’ concrete interest in avoiding abusive debt collection practices.1922

Fair Debt Collection: 11.15.7 Article III Standing for Claims Involving Third-Party Contacts or Public Disclosure of Information About a Debt

Many provisions of the FDCPA protect the consumer’s privacy and relationships from harm by prohibiting third-party contacts or disclosure of information about the debt in a public way. FDCPA § 1692c(b) generally prohibits debt collector calls to friends, parents, children, other relatives, neighbors, and employers. FDCPA § 1692d(3) prohibits the publication of shame lists of consumers alleged to be refusing to pay their debts, and section 1692d(4) prohibits advertising debts for sale in order to coerce their payment.

Fair Debt Collection: 11.15.9 Article III Standing for Claims Involving Conduct Serving to Harass, Oppress, or Abuse

FDCPA § 1692d prohibits conduct that serves to harass, oppress, or abuse any person in connection with the collection of a debt. It includes both a general prohibition and prohibitions of six specific practices. This section discusses standing to assert claims regarding the general prohibition and the specific prohibitions of threats of violence or other criminal means (§ 1692d(1)); obscene, profane, or abusive language (§ 1692d(2)); and calls without meaningful disclosure of the caller’s identity (§ 1692d(6)).

Fair Debt Collection: 11.15.10 Article III Standing for Claims Involving Unfair or Unconscionable Collection Methods

FDCPA § 1692f prohibits unfair or unconscionable collection methods, including several specifically enumerated acts, such as misuse of postdated checks (section 1692f(2), (3), (4)), causing charges for communications to be made to a person while concealing their true purpose (section 1692f(5)), and wrongful repossession or threats of repossession (section 1692f(6)). This section discusses Article III standing to assert claims regarding violation of these provisions.

Fair Debt Collection: 11.15.12 Burden of Proof

The party invoking federal jurisdiction bears the burden of establishing standing.2131 For a case filed in federal court, the burden of establishing standing thus falls on the plaintiff.2132 However, when a defendant removes a case from state court to federal court, it is the defendant who is invoking federal jurisdiction, so the defendant bears the burden of showing the plaintiff’s standing.2133

Fair Debt Collection: 11.15.3.2 Strategic Considerations

Before filing an FDCPA claim, the consumer’s attorney must carefully evaluate whether the claim meets the case or controversy requirements of Article III—in particular, whether the consumer has suffered a concrete injury. The attorney should consider not only the intricacies of Spokeo and Ramirez, but also whether the complaint smacks of something serious or something trivial.

Fair Debt Collection: 11.15.6 Article III Standing for Claims Involving Unwanted, Inconvenient, or Repeated Calls or Other Contacts with Debtor

The FDCPA places four restrictions on contacts with consumers at inconvenient times or places.1967 Section 1692c(a)(1) prohibits debt collector calls at times and places that are inconvenient for the consumer. Section 1692c(a)(3) prohibits debt collector calls to consumers at their workplaces if such calls are prohibited. Section 1692c(c) allows the consumer to stop most future debt collector phone calls and letters altogether. And section 1692d(5) prohibits repeated calls with the intent to annoy or abuse any person.

Fair Debt Collection: 5.1 Introduction

This chapter discusses the specific requirements which the Fair Debt Collection Practices Act (FDCPA) imposes on debt collectors under 15 U.S.C. §§ 1692b and 1692c. Most of this chapter considers FDCPA § 1692c and Regulation F § 1006.6 (effective November 30, 2021), addressing debt collector communications with the consumer and also generally prohibiting communications about the debt with third parties.

Mortgage Lending: 13.3.1 General

Federal jurisdiction is proper when a claim arises under the Constitution, laws, or treaties of the United States.50 If a case that would come within federal question jurisdiction is filed in state court, it can be removed to federal court.51

Mortgage Lending: 13.3.2 Supplemental Jurisdiction

When the federal court has jurisdiction because of a federal question, it can also exercise supplemental jurisdiction over state law claims as long as they “are so related to [the federal claims] that they form part of the same case or controversy under Article III of the United States Constitution.”60 This test turns on whether there is a “common nucleus of operative facts” between the federal and state law claims.61

Mortgage Lending: 13.3.3.4 No Complete Preemption Under Other Banking Laws

Courts have generally rejected arguments for complete preemption based on the Home Owners’ Loan Act (HOLA),92 the Alternative Mortgage Transaction Parity Act (AMTPA),93 the appraisal fraud provisions of Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA),94 and other banking laws that are not part of the National Bank Act.95 None of these laws completely preempt state

Home Foreclosures: 8.4.2.3.3 The Merrill doctrine as a limitation on liability of government agency loan owners

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Special issues arise when a servicer acts on behalf of a loan owner that is a federal governmental entity. Most often, this occurs when one of the government-sponsored enterprises (GSEs), such as Fannie Mae or Freddie Mac, owns the borrower’s mortgage loan. In these situations, a court-created rule known as the Merrill doctrine may limit application of otherwise controlling agency principles.