Tuesday, November 19, 2019

House Financial Services Committee Considers Amendments to the FDCPA

On November 14, 2019, the House Committee on Financial Services passed the following bills which would amend the federal Fair Debt Collection Practices Act and tighten consumer protections. The bills will now make their way to full House for further consideration.

  • The Ending Debt Collection Harassment Act of 2019 (H.R. 5021) is a response to the proposed Debt Collection Rules and proposes to prohibit a debt collector from contacting a consumer by email or text message without a consumer’s consent to be contacted electronically. The bill also prohibits the CFPB from issuing any rules implementing the FDCPA that allow a debt collector to send unlimited email and text messages to a consumer.
  • The Small Business Fair Debt Collection Protection Act (H.R. 5013) proposes to expand the FDCPA’s protections to certain small business debt.
  • The Fair Debt Collection Practices for Servicemembers Act (H.R. 5003) seeks to add additional prohibitions to the FDCPA concerning servicemembers and their families.
  • The Stop Debt Collection Abuse Act (H.R. 4403) proposes to extend the FDCPA’s protections as it relates to debt owed to a federal agency, limits the fees debt collectors can charge, and clarifies that debt buyers are subject to FDCPA.
  • The Debt Collection Practices Harmonization Act (H.R. 3948) proposes to expand the scope of the FDCPA to include municipal utility bills, tolls, traffic tickets, and court debts.
  • The Small Business Lending Fairness Act (H.R. 3490) proposes to restrict the use of confessions of judgment embedded in certain contracts.

Tuesday, November 12, 2019

Congress Continues To Examine Forced Arbitration

By Anna Claire Turpin

An historic piece of legislation was passed in the U.S. House of Representatives on September 20, 2019. The Forced Arbitration Injustice Repeal (FAIR) Act, (HR 1423) was introduced by Rep. Johnson (D-GA-4). The FAIR Act applies to individual actions as well as joint, class, or collective actions and proposes to end forced arbitration of employment, consumer, civil rights, and antitrust disputes.  Pre-dispute arbitration agreements in the above-mentioned types of cases will not be valid or enforceable.

Should this Bill pass in the Senate, the landscape of litigation in antitrust, consumer, employment, and civil rights disputes will drastically change.  The potential ramifications include more rights and opportunities for individuals to bring actions against corporations as well as a potentially dramatic increase in the caseloads of court systems as more actions are brought within the judicial process.

The Senate received this Bill on September 24, 2019 and referred it to the Committee on the Judiciary.

Anna Claire Turpin practices in Smith Debnam’s Consumer Financial Services Litigation and Compliance Group.

Eleventh Circuit Refuses to Impose a ‘Least Sophisticated Consumer’ Standard to Discharge Violations

The Eleventh Circuit recently affirmed a Florida bankruptcy court’s denial of plaintiff’s motion for sanctions. In doing so, the Court rejected the consumer’s attempt to import the FDCPA’s “least sophisticated consumer” standard to its discharge violation analysis. Roth v. Nationstar Mortg., LLC, (In Re Roth) 935 F.3d 1270 (11th Cir. 2019). 

In Roth, the consumer filed a Chapter 13 and indicated in her petition that she was surrendering certain non-homestead property which was subject to the mortgage of Nationstar’s assignor. The consumer’s Chapter 13 Plan was confirmed and after she completed her payments under the Plan, a discharge order was entered. As such, the mortgage on the surrendered property was discharged. The order stated that “a creditor may have the right to enforce a valid lien such as a mortgage or security interest. . . Also, a debtor may voluntarily pay any debt that has been discharged.” Id. at 1273. Post-discharge, Nationstar, instead of foreclosing, sent Ms. Roth an Informational Statement which contained an amount due, due date and instructions as to how to pay Nationstar. Importantly, the Informational Statement also included a lengthy disclaimer which provided as follows:
This statement is sent for informational purposes only and is not intended as an attempt to collect, assess, or recover a discharged debt from you, or as a demand for payment from any individual protected by the United States Bankruptcy Code. If this account is active or has been discharged in a bankruptcy proceeding, be advised this communication is for informational purposes only and is not an attempt to collect a debt. Please note, however Nationstar reserves the right to exercise its legal rights, including but not limited to foreclosure of its lien interest, only against the property securing the original obligation.

Based upon the Informational Statement, the consumer filed a Motion for Sanctions asserting that Nationstar’s Informational Statement was an impermissible attempt to collect a discharged debt and, therefore, violated 11 U.S.C. §524’s discharge injunction. The Bankruptcy Court denied the motion and on appeal, the district court agreed. The consumer then appealed the decision to the Eleventh Circuit.
On the appeal to the Eleventh Circuit, the issue before the Court was whether the Informational Statement was a prohibited debt collection communication under 11 U.S.C. §524. The Court held that it was not. In doing so, the Court rejected the consumer’s argument that the Court should apply the FDCPA’s “least sophisticated consumer“ standard to its §524 analysis, noting that “what counts as ‘debt collection’ under one statutory scheme is not necessarily ‘debt collection’ under the other.” Id. at 1277.
Instead, the Court looked at whether the objective effect of the Informational Statement was to pressure the consumer to repay a discharged debt. Looking at the plain language of the Informational Statement and in particular, the disclaimer language, the Court concluded the Informational Statement did not constitute an impermissible debt collection in violation of §524. The Court noted that there was a disclaimer on the face of the statement in bold print. Id. Additionally, the statement was labeled as an “Informational Statement” and did not demand payment. Instead, the statement repeatedly stated that it was for informational purposes only and was not an attempt to collect a debt. Moreover, in large letters the Statement noted that any payments would be “voluntary.” The court found that “including an ‘amount due,’ ‘due date,’ and statements about the negative escrow balance does not diminish the effect of the prominent, clear and broadly worded disclaimer.” Id. Further, the court reasoned that if it were to consider the Informational Statement a violation of the discharge injunction, “there would be little daylight between (1) a legitimate attempt by Nationstar to inform Roth how she could regain the property and (2) an unlawful attempt at debt collection in violation of §524.” Id.

Creditors should take note of the Court’s adherence to an objective standard under 11 U.S.C. §524 and its refusal to impose the FDCPA’s “least sophisticated consumer” standard upon the Bankruptcy Code. Creditors should be aware, however, that nothing in the opinion undermines the application of the “least sophisticated consumer” standard in the context of an adversary proceeding seeking damages for violations of the FDCPA.

Wednesday, October 9, 2019

Third Circuit Doubles Down on §1692f Violations

By Anna Claire Turpin and Caren Enloe

The Third Circuit recently doubled-down on its decision in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3rd Cir. 2014).  In Douglass, the Third Circuit held that displaying an internal collection agency reference number through a glassine envelope window violated §1692f(8). In DiNaples v. MRS BPO, LLC, 934 F.3d  275 (3d Cir. Aug. 12, 2019), the defendant debt collector sent a collection letter to the consumer in an envelope which, on its face, displayed a QR code. When scanned, the QR code revealed the debt collector’s internal account number. The consumer filed suit asserting the envelope violated 15 U.S.C. §1692f(8) which prohibits debt collectors from “using any language or symbol, other than the debt collector’s address, on any envelope when communicating with the consumer by use of the mails. . .”  The district court granted the plaintiff’s summary judgment motion on liability based on the reasoning in Douglass.

On appeal, the Third Circuit first addressed the issue of standing and determined the consumer had suffered a concrete injury and therefore had Article III standing to bring the FDCPA claim. In doing so, the Court held that the information in the QR Code was private information. Therefore, the disclosure of this information, which the Court determined was core information relating to a debt, was a concrete intangible injury susceptible to a privacy intrusion. 

The Court then addressed the merits of the FDCPA claim and the debt collector’s argument that the QR code was benign information that did not violate section 1692f(8). While the Court declined to decide whether a benign language exception exists for purposes of  section 1692f(8), the Court rejected the debt collector’s argument that a QR code is a “benign disclosure” because it requires someone to actually scan the code to retrieve the information. Instead, the court held that there is no material difference between displaying information on the face of an envelope as in Douglass and displaying the information in a QR Code. The court reasoned that both methods display the same information and were displayed to the public regardless of the steps needed to actually identify the information. Following its reasoning in Douglass, the court found that “the harm is the same, especially given the ubiquity of smartphones.” DiNaples, 934 F.3d at  282. 

Moreover, the Court having found a violation of the FDCPA, rejected defendant’s argument that the printing of the QR code on the envelopes was a bona fide error.  In asserting a bona fide error, the defendant argued that it "erred by using industry standards for processing return mail and appreciating that no person has ever used a QR Code to determine a letter concerned debt collection." DiNaples, 934 F.3d at 282-283.  The Court dismissed this argument, noting that the issue was a mistake of law and therefore defendant could not avail itself to the bona fide error exception.

Anna Claire Turpin is an attorney practicing in Smith Debnam’s Consumer Financial Services Litigation and Compliance Group.

Thursday, October 3, 2019

SCOTUS Set to Decide whether FDCPA’s Statute of Limitations is Tolled by “Discovery Rule”

By: Zachary K. Dunn

The FDCPA requires that any lawsuit must be brought, if at all, “within one year from the date on which the violation” of the act occurs. 15 U.S.C. § 1692k(d). The US Supreme Court will hear argument this month in Rotkiske v. Klemm to decide whether this statute of limitations is paused until a plaintiff discovers the basis for his or her lawsuit.

The facts underlying the case are straightforward. Kevin Rotkiske accumulated credit card debt between 2003 and 2005, which was then referred to Klemm & Associates for collection. Klem sued Rotkiske in 2008 and attempted service at an address where Rotkiske no longer lived. The lawsuit was withdrawn, but Klemm tried again in 2009 and someone at the former residence accepted service on his behalf. Klemm obtained a default judgment for around $1,500.00.

Rotkiske did not discover the judgment until 2014 when he applied for a mortgage. In 2015, Rotkiske sued Klemm arguing that the collection efforts violated the FDCPA. Klemm moved to dismiss the suit, arguing that the suit was time-barred, as the alleged violations took place in 2008 and 2009. The district court agreed and dismissed the suit.  

In doing so, the district court rejected Rotkiske’s assertion that § 1692k(d) incorporates a discovery rule which “delays the beginning of a limitations period until the plaintiff knew of or should have known of his injury.” Rotkiske appealed the decision to the Third Circuit, which affirmed. Parsing the statutory text, the Third Circuit found that Congress did not include a discovery rule in the FDCPA, and that the remedial purposes underlying the act does not demand that courts interpret the FDCPA to include one. The court held that when drafting the FDCPA, Congress was most concerned about the “repetitive contacts” that debt collectors may make with debtors, not that debt collectors will conceal their actions to unscrupulously obtain judgments against unknowing consumers.

The Third Circuit’s en banc opinion created a split in the federal circuit courts of appeal, with the Third Circuit holding that § 1692k(d) does not contain a discovery rule, and the Fourth and Ninth Circuits holding that it does. Briefing is complete, and the case is set for oral argument at the court on October 16, 2019. Expect oral argument to encompass topics such as whether the FDCPA’s text clearly and unambiguously excludes a discovery rule, whether Congress presumed that a common law principle such as the discovery rule would be incorporated into the FDCPA, and whether an implied discovery rule fits with the act’s remedial purpose.

We will have a blog post after oral argument, and when an ultimate decision is made by the Court.  

Zachary Dunn is an attorney practicing in Smith Debnam’s Consumer Financial Services Litigation and Compliance Group

Tuesday, August 27, 2019

First Circuit Affirms Bankruptcy Court’s Judgment in Favor of Mortgage Company

By Caren D. Enloe

A First Circuit Bankruptcy Appellate Panel (the “Panel”) recently held that a mortgage company’s communications did not violate the discharge injunction when viewed under an objective standard and considering the facts and circumstances surrounding the communications. Kirby v. 21st Mortg. Corp., 599 B.R. 427 (2019). 

In Kirby, the consumers filed Chapter 7 while engaged in a state sponsored Foreclosure Diversion Program.  After the Kirbys received their discharge, the parties continued with the diversion program, including mediation. Post discharge, but within the context of the mediation and other loss mitigation efforts, the mortgage company sent a series of communications to the Kirbys in care of their counsel.  All but one of the documents contained a bankruptcy disclaimer informing the Kirbys that

To the extent your original obligation was discharged, or is subject to an automatic stay of bankruptcy under Title 11 of the United States Code, this notice is for compliance and/or informational purposes only and does not constitute an attempt to collect a debt or to impose personal liability for such obligation. However, a secured party retains rights under its security instrument, including the right to foreclose its lien.

Id. at 434.  After all attempts at loss mitigation failed, the Kirbys’ counsel sent a cease and desist notice to the mortgage company.  After receipt of the cease and desist, the mortgage company sent an annual escrow account disclosure statement, a letter regarding a possible short sale as an alternative to foreclosure and a PMI Disclosure, all of which were addressed to the Kirbys in care of their counsel.  The mortgage company additionally sent a Right to Cure directly to the Kirbys which contained a bankruptcy disclaimer. In total, the mortgage company sent 24 written communications to the Kirbys or their counsel in the 26 month period following the discharge.

Post foreclosure, the Kirbys reopened their bankruptcy and initiated an adversary proceeding alleging, in part, that the mortgage company’s post-discharge communications were coercive attempts to collect a debt in violation of the discharge injunction.  The bankruptcy court disagreed and granted summary judgment in favor of the mortgage company.

On appeal, the issue before the court was whether the post-discharge communications improperly coerced or harassed the Kirbys into paying the discharged debt.  While the Kirbys argued that the sheer volume of the communications amounted to coercion, even if the individual communications did not, the Panel did not agree and concluded that the surrounding circumstances and context in which the communications were sent eliminated any coercive or harassing effect of the post-discharge communications. Id. at 444.

In reaching its decision, the Panel noted that the discharge injunction does not prohibit every communication between a creditor and debtor—only those designed to collect, recover or offset any discharged debt as a personal liability of the debtor. The court then examined the individual communications sent by the mortgage company.  Regarding the letters sent during mediation period, the Panel first observed that each of the communications was sent to the Kirbys’ counsel and not directly to the Kirbys.  Moreover, all but one of those communications included “unambiguous bankruptcy disclaimers informing Mr. Kirby that if he had received a bankruptcy discharge, 21st Mortgage was not attempting to collect a debt from him personally and the correspondence was for informational purposes only.” Id. at 444.  The communication which did not include the bankruptcy disclaimer was an ARM Notice which merely informed the Kirbys of a change in interest rate.  With respect to the ARM Notice, the lack of a bankruptcy disclaimer did not concern the Panel and was not a per se violation of the discharge injunction because it was evident from the circumstances that there was no coercion or harassment.  Id.  Moreover, the Panel noted, when debtors initiate contact with a creditor to negotiate alternatives to foreclosure after post-discharge, certain communications from the creditor are logical and will not violate the discharge injunction. Id. at 445.  The Panel also concluded that the post mediation communications were either sent for informational purposes or to enforce the Defendant’s mortgage foreclosure rights and therefore did not violate the discharge injunction.

Based on the totality of the circumstances surrounding the post-discharge communications, together with the substance of those communications, the Court concluded that the correspondence in question, whether viewed individually or cumulatively, was not coercive or harassing and did not violate the discharge injunction.  Id. at 448.

Caren Enloe is a partner with Raleigh, NC’s Smith Debnam and leads the firm’s Consumer Financial Services Litigation and Compliance Group.