Yesterday, the U.S. Senate confirmed Amy Coney Barrett as a Supreme Court Justice to fill the seat left vacant by the passing of  Justice Ruth Bader Ginsburg. With Justice Barrett now sworn in, it’s worth taking a look at how she has previously ruled on industry-related cases. 

While seating on the Seventh Circuit Court of Appeals, Justice Barrett sat on panels for several FDCPA cases. Overall, Justice Barrett takes a common-sense and narrow approach to FDCPA cases and is not afraid to hold plaintiffs and their counsel to task when warranted. 

Editor’s Note: iA Case Law Tracker subscribers can view all of Justice Barrett’s court decision summaries here.

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Narrow Approach to Standing

Regarding standing for FDCPA claims, Justice Barrett has taken a no-harm, no-found approach (similar to the approach recently adopted by the Eleventh Circuit in Trichell). This is important to know since this issue seems to be the subject of a recent circuit split that may be headed to the Supreme Court in the future.

In a unanimous decision by the 7th Cir. panel, Justice Barrett authored the opinion in Casillas v. Madison Avenue Associates, Inc., where the court found that a bare procedural violation does not meet the standard for standing in an FDCPA claim. In Casillas, the issue was related to an incomplete letter received by the consumer. The letter informed the consumer that she may dispute the debt or request verification, but did not specify that this must be done in writing. The panel found that the consumer lacked standing because she failed to allege that the debt collector’s actions harmed her or posed any risk to her.

Strict Adherence to the Letter of the Law

While not the author of the decision, Justice Barrett sided with the majority opinion in Preston v. Midland Credit Management, Inc. While the Preston decision found no issue with a settlement offer on a letter marked as a “time sensitive document” (because it had the “we are not obligated to renew this offer” safe harbor disclosure), the panel took a strict reading of the FDCPA when it came to markings on an envelope.

In Preston, the debt collector sent a collection letter that was inside of an envelope, which itself was inside another envelope. The exterior envelope contained no issues, but the interior envelope contained the “time sensitive document” label referenced above. The panel found that this stamp went beyond what is permitted to appear on an envelope, and therefore dismissal of this claim was not appropriate. (The court did not address whether or not the problematic envelope being inside another envelope has any impact on its decision, but that’s likely because they were reviewing a decision on a motion to dismiss rather than a motion for summary judgment.)

Creditor ID Claims—A Mixed Bag

Justice Barrett sat on two different panels that reviewed the issue of whether the debt collector sufficiently identified the creditor to whom the debt is owed.

In one case—Steffek v. Client Servs.—the panel found that simply including “Re: Chase Bank USA, N.A.” with no other reference to the creditor in the collection letter, was insufficient to meet the FDCPA’s standard. 

On another panel, Justice Barrett reviewed Dennis v. Niagra Credit Sols., where the debt collector sent a letter on behalf of a debt buyer creditor. The letter listed the debt buyer as the current creditor and Washington Mutual as the original creditor. The consumer sued, arguing that including two entities on the letter confuses the consumer as to which creditor the debt is owed. The district court granted the debt collector’s motion for judgment on the pleadings, finding that the letter meets the FDCPA’s requirements by sufficiently listing LVNV as the current creditor. The 7th Circuit panel affirmed, calling this a “meritless claim,” and finding that a least sophisticated consumer would understand from the context of the letter that the debt was purchased by and is now owing to LVNV.

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Holding Plaintiffs’ Counsel To Task

In Paz v. Portfolio Recovery Associates, the 7th Circuit panel on which Justice Barrett sat showed no mercy to a plaintiff and his counsel who rejected several meaningful settlement offers. The result? A slashing of requested attorney fees by a whopping $170,000.

Paz arose out of a defendant-appellee credit reporting plaintiff’s account without noting it as disputed. Plaintiff accepted the defendant’s Rule 68 offer of judgment, which was not to be construed as an admission of liability. After this, the defendant continued to credit report without dispute, so the plaintiff filed another suit. Defendant again gave a Rule 68 offer of judgment for $3,501, but the plaintiff never responded. Prior to trial, the defendant offered to settle the suit for $25,000 plus attorney fees and costs, but the plaintiff rejected the offer. The jury found in favor of the plaintiff, but his sole recovery was $1000 statutory damages.

Plaintiff sought $187,410 in attorney fees, but the district court slashed this award to only $10,875 finding that plaintiff rejected meaningful settlement offers and that the fee was far too disproportionate to the plaintiff’s recovery. Since the Rule 68 settlement offer when the case was first filed was threefold the plaintiff’s actual recovery, the court only allowed fees worked prior to the Rule 68 offer.

The Seventh Circuit also called out the plaintiff’s attorney on two fronts. First, the plaintiff’s argument that he did not understand the terms of a Rule 68 offer of judgment was not unpersuasive considering the previously received and accepted identical offers. Second, the plaintiff’s argument that a judgment at trial is a better result than accepting a settlement offer overlooks the construction of a Rule 68 offer of judgment, which would similarly result in a judgment against defendant. A judgment is a judgment.

Debt collection seems to be a hot item this month. Not only is the Consumer Financial Protection Bureau’s (CFPB) final debt collection rule slated to be released at any time, Congress seems to have taken an interest in debt collection issues as well. (Curious timing, eh?) The Congressional Research Service released an in-depth report titled, “The Debt Collection Market and Selected Policy Issues.” The report suggests that, depending on what the CFPB final rule says, Congress may be interested in keeping an eye on things.

The report discusses where the debt collection market stands as of right now: the size of the market (“As of 2019, there are over 7,000 collection agencies in the United States, and the industry’s annual revenue is about $12.7 billion.”), and current regulatory developments. On the latter front, the report discusses the pending CFPB rule as well as complaint volumes and supervision/enforcement actions.

The report then delves into 5 separate policy issues that might be ripe for congress’ review:

1. Communication frequency
2. Time-barred and obsolete debt
3. Validation issues
4. Medical debt and credit reporting
5. Federal, state, and local government debt exemptions

Below is a brief summary of the first four issues.

Communication frequency

The report discusses the hot button issue of whether the CFPB’s proposed rule regarding call caps is too restrictive or too permissive. There are two sides of this debate, according to the report, both of which may be moot since a CFPB survey that found consumers prefer email communications anyways. The CFPB rule would allow without limit but would grant consumers the power to stop such communication channels at their desire. This opens up another can of worms, as some consumer advocates believe that such communications should be opt-in rather than opt-out.

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Time-barred and obsolete debts

The topic of time-barred debts tends to be one that is getting a lot of attention. The report discusses many sides of the debate, including the proposal by certain consumer advocates to outright ban collection on time-barred debt. There is a discussion about how consumers may not know what it means if their debt is time-barred, little less that certain actions they take could restart the statute of limitations. The report mentions that the CFPB’s proposed rule on time-barred debts would address this.

However, the CFPB proposed rule does not address another area of consumer confusion: credit reporting of time-barred debts. Specifically, there is no mention or education to consumers about when their account becomes obsolete (meaning, when a debt can no longer be included in a consumer’s credit report).

Validation issues

The report brings up an interesting issue about debt validation: that in some instances, there is no master database of account information that a debt collector can check against to ensure that the debts they are collecting are valid and correct. Instead, some debt collectors are only able to rely on the limited account information sent to them by the creditor, which often does not include account-level documentation unless and until a consumer disputes the debt.

Editor’s Note: This is not the case in all instances. Many larger financial institutions are beginning to use certain vendor resources to store all account-level information to allow debt collectors to pull validation themselves from the moment the account is placed rather than rely on the creditor to provide the information only after a dispute.

Medical debts and credit reporting

The report discusses “inconsistent billing and reporting practices” when it comes to medical debt, which often leaves consumers—who are “unlikely to know how much various medical services cost in advance”—lost. The report discusses the IRS rule from 2014, which required separating billing and collection policies of nonprofit hospitals as an attempt to alleviate this issue.  

The report then discusses the credit reporting of medical debts:

Concerns about the impact of medical debts on credit reports continue. Some observers may believe it is unfair for medical debts to appear on credit reports because these debts are generally incurred for medically necessary reasons and are less likely to indicate whether someone is financially responsible.

The report’s conclusion

The report concludes that there are several areas of the debt collection market—specifically, those referenced above—that are ripe for congressional review:

As the CFPB finalizes and implements its debt collection rulemaking, stakeholders may be able to see how new regulations could impact the market. For these reasons, the debt collection market may continue to be the subject of congressional interest and legislative proposals.

It sounds like the drama in Massachusetts over the outbound collection call ban is making its way through litigation. On Friday, October 23, Massachusetts Attorney General Maura Healey (AG) moved to dismiss the ACA International lawsuit filed against her office in response to the AG’s emergency regulations that attempted to ban outbound collection calls. The AG’s argument is that ACA’s lawsuit is now moot since the controversy is over—the emergency regulations would have expired by now and, therefore, they were not an issue any longer.

When the COVID-19 pandemic began to spread in the United States, many states began enacting emergency regulations to manage the situation. This included the Massachusetts AG’s office, with the above-referenced emergency regulation. This occurred at the beginning of April. By the end of the month, ACA International filed a lawsuit against the AG’s office, arguing that the emergency regulation was unconstitutional as an unlawful restriction on free speech.

At the beginning of May, the judge in the case granted a temporary restraining order that restricted the AG’s office from enforcing the order until the court could reach a full decision on the merits of the case. The court reasoned that the regulation did not materially advance the substantial governmental interest in preserving domestic tranquility during the pandemic crisis, which calls into question the constitutionality of the restriction. The court also found that ACA International—specifically, its member companies—could face irreparable harm if the regulation is enforced while the lawsuit is pending. 

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insideARM Perspective

On its face, this sounds like good news—the emergency regulation expired and there is no more threat that this specific ban on outbound collection calls will impact the industry. In a more academic sense, it would be unfortunate if the suit got dismissed prior to a full decision on the merits of the constitutionality of such a call ban. The granting of the temporary restraining order only shows that such a call ban might violate the First Amendment. A decision on the merits would be a more definitive statement that could serve as a bedrock defense in case any other similar regulation is attempted. For now, we will wait and see how things unfold.

UNIVERSITY PARK, Fla. — The National Creditors Bar Association (NCBA) presented its 2020 awards and scholarships this week at the NCBA 2020 Executive Experience event in Phoenix, Ariz. 

Donald Kramer Award: Brit Suttell

NCBA presented its 2020 Donald Kramer Award to Brit Suttell with the firm Barron & Newburger, P.C.  The Donald Kramer Award, named in honor of NCBA founder Don Kramer, is presented annually to an individual whose efforts have made a substantial and lasting impact for the benefit of the creditors’ rights community.

Member of the Year Award: Harvey Moore

NCBA presented the 2020 Member of the Year Award to NCBA Past-President Harvey Moore with The Moore Law Group, APC.  The award is given to an NCBA member who demonstrates extraordinary commitment to the NCBA vision.

President’s Award: William Hicks

NCBA President Mark Groves presented the 2020 President’s Award to William Hicks with the law firm Messerli & Kramer P.A. In recognition of his ongoing dedication and service to the association.

Outstanding SCBA Award: Michigan Creditors Bar Association

NCBA presented the 2020 Outstanding SCBA Award to the Michigan Creditors Bar Association (MCBA).  The award recognizes MCBA’s 25 years of elevating the practice of collection law, providing its members with educational seminars and opportunities for networking and open exchange of ideas, and promoting legislation and court rules to strengthen and improve the Michigan legal system.

Community Service Award: The NCBA “Acts of Kindness” Member Firms

The NCBA 2020 Community Service Award, which would normally go to a NCBA member firm which donated generously to their community, was presented this year to the 21 member firms that shared with NCBA the details of their generous acts of kindness performed in their communities during COVID-19.  The firms are: Blitt and Gaines, P.C.; Couch, Conville & Blitt, LLC; The Law Offices of Daniel C. Consuegra, P.L. Friedman & Associates, LLC; Glasser and Glasser, P.L.C.; Gordon, Aylworth & Tami, P.C.; Gurstel Law Firm P.C.; The Law Office of Howard B. Weber; The Law Office of Jason Gang, PLLC; The McHughes Law Firm PLLC; Messer Strickler, Ltd.; Newby, Sartip & Masel, LLC; North Central Legal Solutions, PC; O’Reilly Rancilio P.C.; Persolve Legal Group, LLP; Randolph, Boyd, Cherry and Vaughan; The Law Offices of Ronald S. Canter, LLC; Slovin & Associates; Tobin & Marohn; Weltman, Weinberg & Reis Co., LPA; and Zimmerman & Zimmerman, P.A.

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2020 Scholarships

The NCBA Scholarship Program was established to promote financial literacy to our future leaders of our communities.  The 2020 NCBA Scholarship Program is sponsored by Stratus Payment Solutions.  Members of NCBA’s client community willingly served as judges this year. 

A first place scholarship of $5,000 and a second place scholarship of $2,500 were awarded to students enrolled in a non-vocational, accredited two-year or four-year college or university in pursuit of a degree.  The contest topic was, “Is texting or emailing more or less intrusive than a phone call? Why?”  The first place recipient was Eliza Conner, daughter of an attorney with NCBA member firm Garner and Conner, PLLC.  The second place recipient was Rebecca Olshan, daughter of an attorney with NCBA member firm Rubin & Rothman, LLC.

A scholarship of $7,500 was awarded to a student enrolled in an accredited school of law in pursuit of a Juris Doctor degree.  The contest topic was, “What is the role that collections plays in the credit cycle and economy, and why is it important?”  The winner of the law school scholarship is Nicole Mouzakiotis, daughter of an employee at NCBA member firm Blitt & Gaines, P.C.

In 2020, the Consumer Relations Consortium (CRC) launched its inaugural Legal Advisory Board (LAB), an exclusive membership group of outside counsel with expertise in the accounts receivable industry who have each pledged their time and resources to support the mission of the CRC. Throughout the year, the LAB served as a legal resource to the CRC and iA Innovation Council membership and assisted in fulfilling the mission of promoting forward-thinking approaches to the issues raised by regulatory policy and technology innovation in the accounts receivable industry. 

Today’s spotlight, which showcases LAB members in their own words, highlights John Rossman of Moss & Barnett.

Editor’s Note: The application period for the 2021 CRC LAB is open until 10/31/2020. Learn more about the application process here.

What inspired you to become a lawyer?

When I was young, I enjoyed watching reruns of Perry Mason. While the show was named after the fictional attorney Mason, it was the clutch team of Della Street and Paul Drake who always provided Mason with the additional last-minute support and data he needed to prevail against long-odds in Court. We’ve found that a stellar team is likewise instrumental to the success of the 24 attorneys in our Financial Services practice here at Moss & Barnett.

We are truly blessed to practice with the best possible team of outstanding legal professionals including Pat Egdorf, Andrea Montan, Jodi Newsom, Maureen Montpetit, Linda Anderson, Mariah Sletten, Brenda Murphy, Todd Forrester, Deb Weinstock and Robin Gibson. This incredible team inspires me every day with their dedication to excellence for our clients and our law firm.

Other than the CFPB rules, what is a hot topic in legal/compliance you think industry members should be paying attention to in the next couple of months?

Since the pandemic started, we’ve seen a dramatic increase in State regulatory complaints and investigations against debt collectors and financial institutions. Companies must ensure that their practices comply with State requirements and also respond promptly to any correspondence, complaint or investigation from a regulator. The number one mistake I see companies make is failing to promptly respond to the inquiry from a regulator because the failure to timely respond alone is deemed a violation of the law by regulators.

We’ve also seen an exponential increase in Fair Credit Reporting Act lawsuits, mostly commenced by consumer bankruptcy attorneys who scrutinize debtor credit bureau reports both before and after a bankruptcy filing. I’ve written two articles about this issue recently:

• Wave of Federal Lawsuits Slam Furnishers for “Inaccurate” Credit Reporting of Accounts in Bankruptcy 
• Credit Reporting Debts in Bankruptcy: Deluge of Recent Lawsuits Reveals Risks for Financial Industry.

Any company that furnishes data to the credit reporting agencies should review its policies regarding reporting accounts included in a bankruptcy to ensure compliance with the law.

What has been the highlight of your career thus far?

Volunteer work with the Legal Access Point free legal clinic and annually mentoring law students through the University of St. Thomas law school.

What industry behavior keeps you up at night and why?

I disconnected from all personal social media several years ago and I get 8 hours of sleep every night.

If you could give one piece of non-legal advice to the industry, what would it be?

One of my favorite quotes from Benjamin Franklin: “Either write something worth reading or do something worth writing.”

About John Rossman

In his national practice dedicated to the financial services industry, John has shaped the law in numerous landmark cases that preserved and expanded the rights of financial services companies, including national banks, automobile lenders, fintech companies, collection agencies, debt buyers, mortgage lenders, creditors, and fellow lawyers.

Licensed to practice in 15 courts and jurisdictions across the country, John regularly serves as counsel nationwide, both as a lead lawyer and as a learned strategist for local counsel. He advises and counsels financial services industry clients on regulatory compliance, defends them in claims and litigation, and advises them on best practices to prevent legal action.

John also helps creditors navigate the Bankruptcy Code and courts and represents them to secure payments and collateral, make determinations for future services, and minimize preference liability.

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About the Consumer Relations Consortium

The Consumer Relations Consortium (CRC) is an organization comprised of more than 60 national companies representing the diverse ecosystem of debt collection including creditors, data/technology providers and compliance-oriented debt collectors that are larger market participants. Established in 2013, CRC is evolving the debt collection paradigm by engaging stakeholders—including consumer advocates, Federal and State regulators, academic and industry thought leaders, creditors and debt collectors—and challenging them to move beyond talking points and focus on fashioning real-world solutions that actually improve the consumer experience. CRC’s collaborative and candid approach is unique in the market.  CRC is managed by The iA Institute.

Learn more at www.crconsortium.org.

About the iA Innovation Council

The iA Innovation Council is a collaborative working group of product, tech, strategy, and operations thought leaders who envision the future of collections and map how to get there. Group members meet throughout the year to engage in substantive dialogue and whiteboard sessions with the creative thinkers behind the latest innovations for the industry, the regulators who audit and establish guardrails for new technology, and educators, entrepreneurs and innovators from outside the industry who inspire different thinking. 

Learn more at www.iainnovationcouncil.com.

This article is part of the iA Think Differently series. Written by or recorded with members of the iA Innovation Council, the series of articles and videos showcases thought leadership in analytics, communications, payments, and compliance technology for the accounts receivable management industry.

—

Almost exactly a year ago I published an article titled, If you don’t like change, you’re going to like irrelevance a lot less. Today, with the hindsight of the current pandemic, the premise couldn’t be more true.

The collection industry has a lot of legacy processes and technology. There is bureaucracy, and there is resistance to change – especially due to regulation and fear of lawsuits. Yet, the world has changed in many ways right around the industry. Those who wish to be around in ten years need to get about doing things differently. In spite of the pain. Some are already ahead of you. A few debt collectors and technology companies are doing things differently. Yes, with compliance in mind — but differently, nonetheless. And they have not been sued out of existence, nor have they experienced soaring complaints. 

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What should collection agencies be thinking about?

What do I see as the bottom line of their different approach? It puts the consumer at the center of their focus — not the creditor client. Do you have to satisfy the client? Of course. But this is generally not where the innovation comes from. Creditors’ representatives are by nature going to be conservative. They are not business owners. They report to someone who has given them targets to hit, and therefore you have targets to hit. It’s not their job to think about your business and what it will look like in 3, 5, or 10 years.

So, are you designing your business around the consumer or the client? Here’s a hint: When you go to your home page what do you see? Is there a small link at the top that says “Did we send you a letter?” or are options for consumers front and center, with a small link for potential new clients at the top? Further, are you optimizing your consumer interface for mobile interaction or just desktop…are you optimizing for consumer experience at all? 

What should lenders and creditors be thinking about?

Ironically, creditors are indeed where innovation is happening — but at the point of lending or credit initiation, not after charge-off. This fact should allow for a good deal of innovation in the first party servicing space, where vendors are working on the creditor’s system. However, once charged-off and in the world of the third party space, it seems creditors move accounts into a no man’s land of legacy systems that are inaccessible to the consumer and receive little attention in the form of technology development or maintenance. 

Creditors that believe charged-off customers are still potential future customers who have simply hit a bad patch should revisit this process. It’s not doing you any favors in the department of your relationship with those consumers.

At the iA Innovation Council, we engage in discussions about what’s coming. We get you thinking about the future, so you can begin to imagine how to get there from here; what are the real barriers, and what are the real opportunities? If you only talk about this with those you see every day, you will limit your view of the big picture. I dare you to join us.

—

The iA Innovation Council is a collaborative working group of product, tech, strategy, and operations thought leaders at the forefront of analytics, communications, payments, and compliance technology. Group members meet in person (and lately, virtually) several times each year to engage in substantive dialogue and whiteboard sessions with the creative thinkers behind the latest innovations for the industry, the regulators who audit and establish guardrails for new technology, and educators, entrepreneurs and innovators from outside the industry who inspire different thinking. 

2020 members include:

Editor’s note: This podcast episode is provided through an exclusive industry partnership between insideARM and Clark Hill, PLC. Podcast host Joann Needleman, a leading financial services attorney and member of the iA Legal Advisory Board, provides bite-sized hot topics in the consumer finance space. ClarkHIll content—and all insideARM articles—are protected by copyright. All rights are reserved.  

Show Notes: Contact centers and the technology providers who support the financial services industry were thrown into the front lines during the pandemic. Boris Grinshpun, General Manager of the CRM Group at LiveVox stops by Clark Hill’s Credit Eco To Go to talk about these challenges and experiences. These new and instantaneous set-ups have not only created better ways to manage and monitor call center employees and operations but it has also resulted in transformational ways contact centers are communicating with consumers. Communication channels are now being re-defined to not only follow the consumer but to achieve the same personalization the consumer expects as if they were in-person or speaking to a live person. 

DISCLAIMER – No information contained in this Podcast or on this Website shall constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and podcast host, the guests or Clark Hill PLC. You are urged to speak with your financial, investment, or legal advisors before making any investment or legal decisions.   

Funk Game Loop by Kevin MacLeod
Link: https://incompetech.filmmusic.io/song/3787-funk-game-loop
License: http://creativecommons.org/licenses/by/4.0/

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Interesting things are happening within the Eleventh Circuit and, finally, things are looking up for the industry in the litigation sphere. Back in July, the Eleventh Circuit Court of Appeals rocked the boat with its decision in Trichell v. Midland Credit Management, where it established a no-harm, no-foul approach to standing for FDCPA claims. Trichell‘s progeny are flowing in at a fast clip, and we are tracking this very closely with the iA Case Law Tracker. The latest update in this sphere comes from the  Middle District of Florida’s dismissal of an FDCPA claim for lack of standing. 

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Trichell established that a consumer that did not suffer the harm he or she alleges does not have standing to bring the relevant FDCPA claim. In Trichell, the claim alleged that letter language could mislead consumers, but the consumer himself was not actually misled by the letter. 

The most recent court decision out of M.D. Fla. citing Trichell is Ruffin v. Dynamic Recovery Sols. (M.D. Fla. Oct. 19, 2020). 

So, what happened in Ruffin?

In Ruffin, the defendant debt collector sent a letter to the consumer on a time-barred debt account. The letter included disclosures similar to what the Consumer Financial Protection Bureau (CFPB) proposed in its Supplemental Notice of Proposed Rulemaking: that, due to the age of the debt, the defendants will not sue the consumer and that a partial payment may restart the statute of limitations period.

The consumer filed an FDCPA lawsuit alleging that the letter contained a misleading representation because, in Florida, the statute of limitations does not revive with a partial payment. Revival requires a written acknowledgment by the consumer. 

Notably, the consumer did not make any payments nor stated how she was damaged in any way.

Defendants filed a motion to dismiss.

The Court’s Decision

The court granted the defendants’ motion, finding that the consumer lacked standing to bring the FDCPA claim under the precedent set by the Eleventh Circuit in Trichell. The court summarizes Trichell:

In addressing the plaintiffs’ standing, the Eleventh Circuit observed that “neither plaintiff alleges that he made any payments in response to the defendants’ letters—or even that he wasted time or money in determining whether to do so,” but rather that they “asserted only intangible injuries, in the form of alleged violations of the FDCPA.” The Eleventh Circuit noted that, even in the context of a statutory violation, “Article III standing requires a concrete injury.” It concluded that the plaintiffs did not allege reliance or actual damages. Instead, the plaintiffs alleged harm only to “unsophisticated consumer[s],” which was insufficient. 

[Internal citations omitted.]

In determining its result, M.D. Fla reasons:

Ruffin generally alleges the Letter “misleads the consumer regarding Florida law.” She does go a step further in claiming that she was misled. However, she fails to allege she made a payment towards the debt as a result of having received the Letter, and otherwise fails to allege any sort of reliance on the alleged misrepresentation. Also, despite claiming she was damaged, Ruffin fails to explain how she was damaged or how the alleged misrepresentations caused her damages.

At best, Ruffin alleges she is at risk of incurring damages as a result of being misled. But the complaint’s allegations reflect that this alleged risk was dissipated by the time she filed her complaint because her complaint identifies the Florida statute on reviving a time-barred debt. In other words, if the Letter was actually misleading, Ruffin knew that before she filed her complaint and any risk of harm associated with the language in the Letter had dissipated.

The court concludes:

Because the Eleventh Circuit does not recognize an “anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury,” Ruffin’s complaint is dismissed without prejudice for lack of standing.

insideARM Perspective

As mentioned above, we are tracking Trichell and its progeny very closely in the iA Case Law Tracker. Subscribers get our weekly legal trends and analysis report, which gives them the inside scoop from someone who closely monitors industry-related court decisions: me! The Trichell saga, including its trend details, has been the subject of this report on 3 separate occasions. This means that subscribers already know this issue from all angles: where it’s held up, when it failed, what facts supported dismissal, etc. The weekly report also contains a rundown of all of the new cases added to the CLT in the prior week, so subscribers get an exclusive, detailed glimpse of what’s going on in the courts in minutes (so they don’t have to spend hours of their week getting up-to-date).

Want to gain these invaluable benefits? Subscribe today, or take a free one-week trial.

PEACHTREE CORNERS, Ga. — The FFAM360 Alliance of Companies is fundraising for the Breast Cancer Research Foundation this October. This annual Breast Cancer Awareness Month campaign helps increase attention and support for the awareness, early detection, and treatment of this disease.

FFAM360 Joins GCFS to Make a Difference in 2020 

The team at FFAM360 is partnering with the Global Corporate Finance Society (GCFS)  to make impactful and positive changes in promoting public awareness of breast cancer. Each year, our organization chooses to focus efforts directly to the Breast Cancer Research Foundation. Their President and Chief Investment Officer, Matthew Maloney, says  “our annual Breast Cancer Awareness Campaign is an important October tradition within the company. We always strive to make a positive impact and I enjoy watching the employee-led team’s creativity and passion surrounding the fundraising efforts. Our internal messaging turns pink every October and this year is no exception as we’ve added awareness logos and taglines to our email signatures and promoted the campaign throughout the company. We hope to make another significant annual contribution to this important cause and get help to those most in need. Everyone here is exceptionally committed to being part of the solution and has unwavering faith in a cure for breast cancer.”

Fundraising for the Breast Cancer Research Foundation

Breast Cancer Awareness Month is a critical time to raise funds for lifesaving research. The Breast Cancer Research Foundation (BCRF) is a nonprofit organization committed to achieving prevention and a cure for breast cancer. Providing critical funding for cancer research, the organization fuels advances in tumor biology, genetics, prevention, treatment, metastasis and survivorship. FFAM360 believes that our support of BCRF research will touch the lives and hearts of both the scientists and medical professionals who are leading this crucial mission and the families battling the disease.

BCRF is the highest-rated breast cancer organization in the U.S. and has an A rating from Charity Watch. In 2019-2020, BCRF will award $66 million in annual grants to support nearly 275 scientists across 15 countries. They are the largest private funder of breast cancer research in the world and have raised more than half a billion dollars for lifesaving research since beginning in 1993.

FFAM360 Financial Match for Employee Collected Donations 

Each October, our employees personally donate and are extremely successful in fundraising within the local community to help support the fight and promote the importance of Breast Cancer Awareness Month. Our 2020 campaign is offering a 100% corporate donation match for every dollar donated by employees through these fundraising initiatives. Those that participate will receive items based on their donation level, Breast Cancer Awareness Bracelet, a Raffle ticket for additional prizes, an Amazon Gift Card, a Warm Heart, and the satisfaction of contributing to a great cause. “This campaign is an integral part of our 2020 motto to Clearly Go Above and Beyond.I am proud of the way our team continuously strives to go above and beyond in their support of causes that directly impact our loved ones and our communities. . We have always promoted a strong philanthropic culture within our family of companies and it’s wonderful to see our employees unite with a common purpose in this way. I feel that providing this corporate match to the dollars they generate is our way of appreciating their contributions,” says Mr. Maloney. 

Help Support the Fight Against Breast Cancer

The fundraising effort from the FFAM360 team will provide much-needed resources that will directly benefit the Breast Cancer Research Foundation (BCRF).  If you are interested in helping support our campaign efforts, donations for the FFAM360 team are being collected through our donation page. To share in our employee’s passion to Clearly Go Above and Beyond, we have established a matching gift to further an employee’s donation, doubling the impact of the initial donation to BCRF. 

For more updates about how we support our community, please follow us on Facebook and LinkedIn. More information about our community involvement and charitable giving can be found on our News page.

About FFAM360

The FFAM360 group of companies deploys world-class people, operations, and technology to deliver revenue cycle solutions to their clients that optimize their credit and revenue lifecycles. Founded in 2002 with the vision of creating a best-in-class organization that provides comprehensive solutions across the Insurance Subrogation, Healthcare, Staffing, and Financial Service sectors, They have achieved many significant awards and recognitions including being honored by the Women’s Business Enterprise National Council (“WBENC”) as a Certified Women-Owned Business Enterprise. They are headquartered just outside Atlanta, Ga., with additional offices in Phoenix, Ariz. and Paso Robles, Calif.

About Breast Cancer Research Foundation

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A little over a month after the Consumer Financial Protection Bureau (CFPB) filed a lawsuit against Encore Capital and its subsidiaries, the parties have reached a settlement. Just like that, the case is now over. On Thursday of last week, the CFPB filed a stipulated judgment that effectively extends the CFPB’s prior consent order with Encore for five more years in addition to applying certain monetary penalties. The penalties include $15 million in civil penalties and $78,000 in monetary relief. The judge signed the order on Friday.

In the instant lawsuit, the CFPB alleged that Encore and its subsidiaries violated the 2015 consent order in several ways. 

The 2015 consent order required Encore and its subsidiaries, prior to filing collection litigation, to provide consumers with a disclosure that the companies would provide original account-level documentation at no cost to the consumer within 30 days of a request. The complaint alleged that the defendants failed to state that the documentation would be provided at no cost in 750,000 incidents since the effective date of the consent order, and failed to state that such documentation would be provided within 30 days upon request in 25,000 incidents. The complaint also alleged that, after consumers requested the account-level documentation, the defendants failed to provide them in 250 incidents. 

The 2015 consent order also prohibited the defendants from filing collection litigation on accounts that were time-barred by the applicable statute of limitations. It also required that the defendants provide a specific time-barred debt disclosure if defendants were engaging in non-legal collection efforts on such accounts. The complaint alleged that the defendants failed to do both of these. Specifically, the complaint alleges that the defendants sued on 100 time-barred debt accounts since the 2015 consent order and failed to provide the time-barred debt disclosure in 425,000 letters. Of the latter, 845 consumers made payments totaling $125,000.

Lastly, the complaint alleged that defendants began using a foreign payment processor, which resulted in consumers’ banks charging the consumers international transaction fees.

insideARM Perspective

Sounds like regulation by enforcement is not dead after all. This lawsuit was very conveniently timed. Despite the fact that the CFPB is set to release a rule regarding the collection of time-barred debt—a rule that went through a public comment period—the agency filed the instant lawsuit on the eve of the prior 2015 consent order’s expected expiration. The 2015 order was entered on September 9, 2015, and had a 5-year duration. The instant lawsuit was filed on September 8 of this year, just a day shy of the prior order’s expiration. Now, with the extension, the order lives on for 5 more years.

Did the entire consent order need to be extended? Probably not. As stated above, the CFPB already has a set of rules coming out soon on time-barred debts. On top of that, at least the section where the CFPB alleges defendants failed to provide account-level documentation after a consumer request seems like overkill. It occurred in only 250 instances, which is a ridiculously small number considering how large Encore’s portfolio is, and it could very easily and reasonably be attributed to bona fide error.