FDCPA Caselaw Review for June 2018

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. 

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 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. 

Twenty cases were added to the chart for June: nine postitive, and 11 negative. We'll look at five.

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Satran v. LVNV Funding, LLC

Win or Loss? Loss

Issue(s): Right to cure, meaningful attorney involvement, 1692e

The consumer's complaint -- which the court allowed -- is that the collection agency violated both the FDCPA and the Wisconsin Consumer Act by not alerting the consumer that he could have made up the defaulted amount without going into collections. The consumer was also not convinced that an attorney was meaningfully involved. The court said, "Yep, you're right," to the consumer and here we are. 

Nicole MAGANA, Plaintiff, v. AMCOL SYSTEMS, INC, et al., Defendants (case currently not available on PACER)

Win or Loss? Win

Issue(s): Overshadowing, 501r

The agency sent a demand letter, including the 1692g language. ("You have 30 days to dispute," etc.) Additionally, because this was a healthcare claim, the agency also included the necessary 501r language: if the patient needs assistant with their bill, they may qualify for financial assistance. (Note: this kind of language is only necessary if the hospital is a non-profit.) The consumer argued that this was overshadowing. The court said, "Nope. The agency did what it was supposed to do here."

NORMA I. SANTIAGO, on behalf of herself and those similarly situated, Plaintiff, v. CAVALRY PORTFOLIO SERVICES, LLC, CAVALRY SPV I, LLC, JOHN DOES #1-10, Defendants.

Win or Loss? Loss

Issue(s): Statute of limitations, shopping at J.C. Pennyes

Norma Santiago bought goods at J.C. Penney. She bought these items on credit, didn't keep up with the payments, and hoped that she qualified for the 4-year statute of limitations so if she just waited long enough everyone could put this behind them. Cavalry believed that the statute of limitations should be 6 years, rather than 4, because it was an extension of credit. The Court said that, among other things, the J.C. Penney charge card was only a J.C. Penney's charge card, not useable anywhere else, and so fell under the 4-year statute.

YANNSI ESPINAL, Plaintiff, v. AFNI, INC., Defendant.

Win or Loss? Win

Issue(s): Statute of limitations

In this case, unlike the one above, the consumer did not qualify for a shorter statute of limitations. The consumer tried to argue that their debt was governed by the FCA (Federal Communications Act), which has a 3-year s.o.l. AFNI, and the Court, said, no, it's a 6-year s.o.l. 

McGrail v. Law Offices of Michael R. Stillman, P.C.

Win or Loss? Win [updated]

Issue(s): Garnishment, misidentified debtor

Michael Stillman's law office garnished McGrail's wages for a debt. When McGrail discovered the garnishment, McGrail said, "That's not my debt. Stop garnishing my wages." Stillman asked for verification that this McGrail wasn't the one they were looking for, and she didn't not comply. The Court found for the defendant, since the plaintiff did not provide proof of identification.