FDCPA Case Law Review for October 2016

insideARM maintains a free FDCPA
resources page to provide the ARM
community a destination for timely and topical information on the Fair Debt
Collection Practices Act (“FDCPA”). This page is generously supported by TransUnion. See
the page here or find it in our main
navigation bar from any page on insideARM. 

The cornerstone of the
page is a chart of significant FDCPA cases. Click on the link in the chart
for the complete text of the decision. Where insideARM has already published a
story on the case, we provide a link. Case information and analysis is
provided by Joann Needleman, a Clark Hill attorney
and leader of the firm’s Consumer Financial Services Regulatory &
Compliance Group.

FDCPA cases in
October 2016 brought both positive and negative outcomes for the ARM industry

Sulaiman v. Biehl
& Biehl

The gist: Plaintiff in
the case is a consumer attorney. The District Court for the Northern District
of Illinois refused to apply competent attorney standard and found letter at
issue to be not confusing on its face.

Mirshafiei v. Legal
Recovery Law Offices, Inc.

The gist: The District
Court for the Central District of California found that law firm failed in its
due diligence and thus violated the FDCPA when it gave a process server the
incorrect address for service.

McCray v. Federal
Home Loan Mortgage Corporation

The gist: A law firm
who was acting as a substitute trustee for the purposes of a deed of trust was
a debt collector. The 4^th Circuit Court of Appeals held that even
though the communications were in regard to the enforcement of a security
interest, they involved a foreclosure and the payment of money.

Tilatitsky v.
Medicredit, Inc.

The gist: The District
Court for the Eastern District of Missouri ruled that a collection letter which
provided settlement options did not violate the FDCPA. The court ruled that it
was speculation that a phrase in the letter that says “please either” would
confuse a consumer.

Vayngurt v.
Southwest Credit Systems, L.P.

The gist: The District
Court for the Eastern District of New York concluded that the parties to the
contract – T-Mobile and the plaintiff – intended the collection fee to be owed
at the same time as the principal and seeking those fees in a complaint was not
a violation of the FDCPA.

Hart v. Credit
Control, LLC

The gist: The District
Court for the Middle District of Florida held that a voice which identified an
agency but not the representative specifically was not a violation of 1692d(6)
and that a voicemail was not a communication.

McGinty v.
Professional Claims Bureau, Inc.

The gist: The District
Court for the Eastern District of New York ruled that the debt collector failed
to explicitly identify the current creditor in demand letter and thus violated
1692g.

Vien-Phuong Thi Ho
v. Recontrust Company, NA

The gist: The 9^th
Circuit Court of Appeals held that a trustee who was the agent for the lender
and borrower, and who is authorized to sell property if debtor defaults, is not
a debt collector. The court additionally ruled that proceeding to a
non-judicial foreclosure is not debt collection.

Sullivan v. Allied
Interstate, LLC

The gist: The District
Court for the Western District of Pennsylvania ruled the a debt collector was
not under duty to disclose that a debt was time-barred, and that using the word
“settlement” was not a threat of litigation.

Woerthwein v.
Midland Credit Management

The gist: The District
Court for the Northern District of Illinois held that the competent attorney
standard only applies to a consumer’s attorney and will not be applied if the
consumer if an attorney.

Henhaffer v.
Simeone & Raynor

The gist: The District
Court for New Jersey ruled that a 1692g notice that required a consumer to
state the nature of the dispute is not mandated and a violation of the FDCPA.