Justices Rule that Businesses Engaged in Nonjudicial Foreclosure Proceedings are Not “Debt Collectors” under the FDCPA

By David T. Biderman, Kristine E. Kruger & Thomas N. Abbott on March 21, 2019

Mortgage service companies (and their lawyers) got a big boost on March 20, 2019, when the Supreme Court delivered a unanimous opinion in Obduskey v. McCarthy & Holthus LLP, holding that a business engaged in no more than nonjudicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act (FDCPA or Act), except for the limited purpose of §1692f(6). This decision will prevent needless and unfair litigation by borrowers seeking to…

Consumer Finance Legal Report

Merceri Times Two Equals Clarity on the Statute of Limitations in Washington State

By Thomas N. Abbott on October 15, 2018

In Washington State the statute of limitations on actions to enforce a note or deed of trust can be a brutally effective sword for borrowers. The limitations period is six years, and a borrower may sue for quiet title where “an action to foreclose . . . would be barred by the [statute of limitations].” RCW 7.28.300. If successful, the borrower is entitled to “judgment quieting title” against the security instrument. Two commonly litigated issues…

Consumer Finance Legal Report

McNair v. Maxwell & Morgan PC: Judicial and Nonjudicial Foreclosure—A Distinction With a Difference

By Thomas N. Abbott on August 28, 2018

The linchpin of the Federal Fair Debt Collection Practices Act (“FDCPA”) is debt collection. Not surprisingly, litigation often focuses on the crucial question of what is a “debt” and who is a “debt collector” for purposes of the FDCPA. In Ho v. ReconTrust Co., NA, the U.S. Court of Appeals for the Ninth Circuit recently concluded that the enforcement of a security instrument by nonjudicial foreclosure is not debt collection as a matter of law.…

Consumer Finance Legal Report

ACA International v. Federal Communications Commission: A Mixed Opinion on the FCC’s Recent Interpretation of the Telephone Consumer Protection Act

By Thomas N. Abbott on August 15, 2018

In a Declaratory Ruling and Order issued in 2015, the Federal Communications Commission (“FCC”) sought to clarify key aspects of the Telephone Consumer Protection Act (“TCPA”), including (1) what device making calls qualifies as an Automated Telephone Dialing System (“ATDS”), (2) whether a call made to a reassigned telephone number where the prior subscriber gave consent constitutes a violation, (3) the manner required for a consumer to revoke consent, and (4) whether healthcare-related calls are exempt. The United…

Thomas N. Abbott

Justices Rule that Businesses Engaged in Nonjudicial Foreclosure Proceedings are Not “Debt Collectors” under the FDCPA

Merceri Times Two Equals Clarity on the Statute of Limitations in Washington State

McNair v. Maxwell & Morgan PC: Judicial and Nonjudicial Foreclosure—A Distinction With a Difference

ACA International v. Federal Communications Commission: A Mixed Opinion on the FCC’s Recent Interpretation of the Telephone Consumer Protection Act

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