Articles Posted in Recent Case Decisions

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Does a collection letter from a collection law firm seeking payment of an alleged homeowner’s association fee constitute a “debt” under the Fair Debt Collection Practices Act (FDCPA)?  Yes it does.

The Ninth Circuit faced this question in Mashiri v. Epsten Grinnell & Howell (you can read the Google Scholar opinion here).

The district court (trial court) dismissed the case as it ruled there was no FDCPA violation.

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On November 3, 2014, one of our newer judges — Judge John H. England, III, in the Northern District of Alabama, issued a very well reasoned decision explaining why a lawsuit against Wells Fargo does not need to be “stayed” or “frozen” while the FCC considers how to interpret the Telephone Consumer Protection Act (TCPA).

The Plaintiff sued Wells Fargo claiming that Wells Fargo had auto dialed his cell phone. Wells did not dispute this but claims it was trying to reach someone else who used to have the cell phone number and gave permission for Wells to call it.

As an aside, this has been an area we have argued with defendants on for years. They tend to think once they had permission, they can call that number for all eternity. See if that works if you get permission to walk in someone’s house and then years later the house is sold. I don’t think that former permission of the former homeowner does you much good when you stroll in the new owner’s house!

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Ever get those annoying political calls to your cell phone? Not a human but robo (computer) dialed calls? Lori Shamblin did and decided to sue multiple defendants for doing this in federal court in Tampa, Florida.

Here’s what one defendant did to try to show the court that the case should be dismissed as Plaintiff allegedly got everything she was entitled to receive:

New Partners Consulting, Inc. seeks dismissal of the Second Amended Complaint under Rule 12(b)(1) alleging that its Rule 68 Offer of Judgment to Shamblin was an offer of complete relief and thus no case or controversy remains between the parties. (Doc. #122 at 3).

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There is an odd decision — or I should say the Plaintiff acted oddly — and the result was the defendants (LVNV Funding, Northland Group, and Citibank) were dismissed from the case.

You can read this decision of Schweitzer v. Northland Group, LVNV Funding and Citibank which was released by the Southern District of Florida court on November 6, 2014.

Here are the basic facts:

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Often defendants who are sued under the TCPA (Telephone Consumer Protection Act) argue that the damages are unfair and they represent a “windfall” to the plaintiff who “wasn’t really hurt.”

While it has no basis in law, the emotional and financial reasons for making this argument are plain. A defendant can face $1500 per call — per text — per fax. At a minimum it is $500 per call/fax/text.

We have had cases involving hundreds of calls — the damages can add up to a very high amount (high six figures) so the defendants make any argument possible to try to get judges to throw these cases out.

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A big issue in the TCPA is whether consent, and the proper type of consent, was given that would allow a company to auto dial a consumer’s cell phone without being subject to damages of $500-1500 per call.

Helping us as lawyers fill in the picture is a recent decision from the Eleventh Circuit on September 29, 2014, in Mais v. Gulf Coas Collection Bureau.

As usual, we will include the relevant parts from the decision with our analysis below it.

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The TCPA is a hot legal issue as it can result in tens of thousands and even hundreds of thousands of dollars in damages for individual plaintiffs all related to computerized calls to cell phones. A big issue has been “Can you revoke consent to call your cell phone?”

The Eighth Circuit answered this “Yes” on September 26, 2014, in Brenner v. American Education Services (AES). Yes that is the AES that those with student loans often know too well….

The opinion is very short so we will include it all with our commentary below each quote.

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The TCPA (Telephone Consumer Protection Act) prohibits many types of auto dialed/computer dialed calls to cell phones unless prior express permission was granted by the person called at the time of the financial transaction. Text messages are considered to be computerized calls under the TCPA. This is so important to consumers and businesses as the damages are $500 per call and this can actually increase to $1500 per call or text. Damages can be enormous.

There have been issues and arguments related to what liability is there when one company hires another company to actually make the calls or send the text messages.

One of the more recent opinions on this subject is from the Ninth Circuit Court of Appeals on September 19, 2014, in the case of Gomez v. Campbell-Ewald Company (link is to Google Scholar listing for this case).

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Debt collectors love to use “Offers of Judgment” to try to get rid of cases and the new strategy is to argue that “there’s no way you can prove actual damages” or “you didn’t properly plead actual damages” so your case gets thrown out after a $1,001 offer of judgment.

It is a silly strategy but some judges have fallen for this.

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The FDCPA (Fair Debt Collection Practices Act) gives protection to consumers but debt collectors often argue the law should give less protection than the law actually gives.

One example is to argue disputes on the validity of a debt must be in writing.

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