Past Due

Developments and Insights Impacting the Consumer Credit Industry

The least sophisticated consumer doesn’t need everything spelled out for him.  Or at least that’s what the Eleventh Circuit held recently in Conde v. Webcollex, LLC, No. 18-12551 — another case where a court finds that something means exactly what it says. The plaintiff in Conde filed suit after he got a validation letter from Webcollex telling him that: Unless you notify this office within 30 days after receiving this notice that you dispute the validity…
Few things under the Telephone Consumer Protection Act (TCPA) are subject to as much uncertainty as the definition of “automatic telephone dialing system” (ATDS). This year’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) seems to have raised more questions than it answered as courts and the FCC continue to grapple with this definitional component of the TCPA.  Courts are divided as to how to define an ATDS as demonstrated by…
The prospect of attorneys’ fees is often a major factor in strategy and, in particular, settlement.  Defendants sometimes pay more up front just to avoid “running up” plaintiff’s counsel’s fees.  On the flip side, some plaintiff’s counsel may continue to work a low-value case rather than settling, knowing that they may be awarded all of their fees later on.  A recent decision illustrates that neither side should assume that plaintiffs’ counsel will be awarded the…
Two weeks ago, we attended the ACA International Annual Convention in Nashville.  One of the more interesting discussions focused on compliance lessons creditors and debt collectors can take away from recent court decisions. Some of them were easy. For example, in Armata v. Target Corp., 2018 WL 3097094 (Mass. Sup. Ct. June 25, 2018), the Massachusetts Supreme Judicial Court held that, under Massachusetts law, a debt collector may only initiate two automated calls to a…
In Obduskey v. McCarthy & Holthus LLP, the Supreme Court has agreed to hear an appeal from the Tenth Circuit over whether the provisions of the Fair Debt Collection Practices Act apply to non-judicial foreclosures. The Tenth Circuit held that a foreclosure attorney was not a debt collector under the FDCPA because the FDCPA does not apply to non-judicial foreclosures, and it rejected the idea that every foreclosure was undertaken in an attempt to collect…
In Tucker v. Credit One Bank, the plaintiff filed suit after receiving hundreds of debt collection calls allegedly via an ATDS after informing Credit One they had reached the wrong number. In investigating the claims, Credit One determined that the calls were intended for plaintiff’s daughter, who provided the plaintiff’s number as a secondary contact when applying for a credit card for which the daughter ultimately went delinquent. Credit One’ agreement with plaintiff’s daughter contained the…
In a recent opinion, the Ninth Circuit held a plaintiff lacked Article III standing under Spokeo for her complaint on behalf of herself and a putative class action alleging violations of the Fair Credit Reporting Act (“FCRA”) against the National Park Service (the “NPS”). In Daniel v. National Park Service, No. 16-35689 (9th Cir. May 30, 2018), Stephanie Daniel alleged that the NPS violated the FCRA when Daniel purchased an entrance pass to Yellowstone National…
In  Dominguez v. Yahoo!, Inc., the Third Circuit issued a precedential decision, requiring calling platforms have present—not potential—capacity to store or produce and call telephone numbers using a random or sequential number generator to constitute an “autodialer” under the Telephone Consumer Protection Act (TCPA). After buying a used smartphone, Dominguez received texts from Yahoo intended for the prior owner who set up a notification for when they received emails to their Yahoo account. When Dominguez asked for…
On June 21, Judge Loretta Preska of the Southern District of New York concluded that the Consumer Financial Protection Bureau (“CFPB”) is unconstitutionally structured. This decision marks the first time in which a court has reached this conclusion. In Consumer Financial Protection Bureau v. RD Legal Funding, LLC, the CFPB alleged RD Legal Funding, LLC and other related entities (the “Defendants”) violated the Consumer Financial Protection Act. Specifically, the CFPB alleged the Defendants offered cash…
Last week the D.C. Circuit issued its mandate in ACA Int’l v. FCC making that decision final. Not missing a beat, the FCC has already sought comments on key issues regarding the Telephone Consumer Protection Act (TCPA) left unclear in the wake of ACA. Primarily, the public notice issued yesterday identifies the following issues for comment: the definition of ATDS, how to treat calls to reassigned numbers, and standards for revoking consent. Notably, the notice…