Category Archives: Debt Collection

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Alabama Supreme Court: Lender can sue directors of a public improvement district for negligence, breach of fiduciary duty

Alabama law permits the creation of public corporations known as “improvement districts,” which can then issue bonds that are similar to bonds issued by a municipal corporation. These bonds can be used to finance improvements within the district. In Aliant Bank v. Four Star Investments, Inc., the Alabama Supreme Court allowed claims against the directors … Continue Reading

Supreme Court Sides With Balch Lawyers and Finds for Midland Funding, Rejecting FDCPA Lawsuits Based on Bankruptcy Proofs of Claim for Out-of-Statute Debts

This week, the United States Supreme Court issued a key decision under the Fair Debt Collection Practices Act in a case litigated by Balch & Bingham lawyers, Jason Tompkins and Chase Espy. In Midland Funding, LLC v. Johnson, the Supreme Court resolved a circuit split over the issue of whether debt collectors who file bankruptcy … Continue Reading

Eleventh Circuit Declines to Expand Reach of “Least Sophisticated Consumer” Standard In the Context of Sending Periodic Mortgage Statements Following Bankruptcy Discharge

The Eleventh Circuit recently clarified that sending periodic mortgage statements following a debtor’s bankruptcy discharge is not misleading to the “least sophisticated consumer.” In Helman v. Bank of America, 15-13672, 2017 WL 1350728 (11th Cir. April 12, 2017) Gayle Helman filed suit, alleging that Bank of America violated the Fair Debt Collections Practices Act (FDCPA), … Continue Reading

FDCPA’s “Least Sophisticated Consumer” May Still Have Commonsense

Late December, the Fourth Circuit Court of Appeals (Fourth Circuit), in Lovegrove v. Ocwen Home Loans Srvs., upheld summary judgment in favor of a mortgage servicer against allegations under the Fair Debt Collection Practices Act (FDCPA), under which courts generally apply a “least sophisticated consumer” standard. The plaintiff in Lovegrove alleged that monthly mortgage statements … Continue Reading

Joint Tenancy Lienholders Should Timely Execute on Judgment Liens in Order to Avoid Losing Property Interest

The Alabama Supreme Court recently held in Ex parte Arvest Bank, that an unexecuted judgment lien against the property interest of one joint tenant does not sever a joint tenancy with the right of survivorship, thereby extinguishing the lienholder’s rights in the property when that joint tenant dies.… Continue Reading

Eleventh Circuit: Failure to provide debtor with FDCPA-required disclosures constitutes injury-in-fact to confer standing

In an unpublished opinion, the Eleventh Circuit applied the Supreme Court’s recent opinion in Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540 (2016) and held that a debtor who allegedly did not receive certain disclosures required by the Fair Debt Collections Practices Act (FDCPA) suffered an injury-in-fact to her statutorily created right … Continue Reading

Against the Grain: Bankruptcy court allows FDCPA claim to proceed despite res judicata argument

Few issues involving the Fair Debt Collection Practices Act (FDCPA) are more hotly contested than whether filing a proof of claim on a time-barred debt violates the FDCPA. In bankruptcy, creditors have a right to file proofs of claim outlining the debt owed to them by the bankrupt debtor. In some instances, the statute of … Continue Reading

Eleventh Circuit: No arbitration because bank failed to prove existence of arbitration agreement

Last week, the Eleventh Circuit refused to compel arbitration because the defendant financial institution failed to prove that its online deposit agreement actually included an arbitration clause.  This decision reflects the importance of (1) documenting the original agreement (both the actual terms and the assent of the consumer), (2) retaining the documentation, (3) documenting any … Continue Reading

Eleventh Circuit holds that debt collection letters sent to a consumer’s attorney qualifies as a communication with a consumer under the Fair Debt Collection Practices Act.

Following the Eleventh Circuit’s decision in Bishop v. Ross Earle & Bonan, P.A., No. 15-12585, creditors and debt collectors should immediately review their practices to ensure that any communication to a debtor or a debtor’s attorney complies with the Fair Debt Collection Practices Act (FDCPA). This is especially true for FDCPA § 1692g(a)’s requirement that … Continue Reading

Alabama Court of Civil Appeals affirms revival of 11-year old uncollected judgment based on affidavit testimony of creditor’s corporate officer with knowledge of debtor’s nonpayment

In Gloor v. BancorpSouth Bank, No. 2140914 (Ala. Civ. App. April 1, 2016), the Alabama Court of Civil Appeals held that a creditor may revive and collect on an unpaid judgment that is older than 10 years, further clarifying a significant protection afforded to financial institutions charged with recovering past due amounts owed by judgment … Continue Reading

The Eleventh Circuit still stands alone, as Balch attorneys defend the dismissal of Crawford claims in federal appellate courts across the country

From the moment it was published in July 2014, Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014)—the first reported appellate decision holding that a plaintiff may state a claim under the Fair Debt Collection Practices Act based on a creditor’s bankruptcy proof of claim for an out-of-statute debt—spawned a flurry of litigation … Continue Reading

Florida Court Holds Offer of Judgment Statute is Preempted in Actions under the Florida Consumer Collection Practices Act (FCCPA)

A Hillsborough County Court recently held that Florida’s offer of judgment statute, Fla. Stat. § 768.79, is preempted by the Florida Consumer Collection Practices Act (the “FCCPA”), Fla. Stat. § 559.72.  This decision and, others like it, have stripped defendants in lender liability suits of valuable settlement tools.  In May 2013, the plaintiff in Hall … Continue Reading

Eleventh Circuit holds that the FDCPA applies to litigation conduct directed at non-consumers, but declines to adopt or reject the “competent lawyer” standard for communications with consumers’ attorneys

Though it eventually reached the Eleventh Circuit, the Court’s decision in Miljkovic v. Shafritz & Dinkin, P.A., — F. 3d. –, No. 14-13715, 2015 WL 3956570 (11th Cir. June 30, 2015), had its origins in Florida state court, where Publix Federal Credit Union obtained a judgment and continuing writ of garnishment against Nedzad Miljkovic after … Continue Reading

SD Fla Confirms Communications Sent Only to Debtor’s Counsel Not Actionable Under FDCPA

In Maignan v. Seterus, Inc., No. 14-CV-22488 (S.D. Fla. Feb. 11, 2015), the United States District Court for the Southern District of Florida found that an allegedly deceptive communication to a plaintiff’s attorney, as opposed to the plaintiff himself, is not actionable under either the federal Fair Debt Collection Practices Act (FDCPA) or its state … Continue Reading

The tide begins to turn on the deluge of FDCPA claims based on time-barred proofs of claim

The Eleventh Circuit’s opinion in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), cert. denied, — U.S. –, 2015 WL 246891 (Apr. 20, 2015), was the first reported decision holding that a plaintiff may state a claim under the Fair Debt Collection Practices Act based on a creditor’s proof of claim in … Continue Reading

ELEVENTH CIRCUIT COURT OF APPEALS UPHOLDS NON-DEBTOR RELEASES IN CHAPTER 11 PLAN

The Eleventh Circuit Court of Appeals recently issued an opinion resolving any question as to whether or not a chapter 11 plan of reorganization may include enforceable releases of third parties who are not in bankruptcy.[1]  This ruling reinforces the importance of carefully reviewing proposed chapter 11 plans as these plans could impact a creditor’s … Continue Reading

Recent Georgia Supreme Court upholds a Lender’s right to refuse tendered possession of property

Atlanta litigators Matthew Ames, Walt Jones, and Jamie Cohen recently received a favorable decision from the Georgia Supreme Court, which confirmed the rule that a secured creditor cannot be forced to accept possession of the collateral in satisfaction of an indebtedness when the creditor did not, in fact, seek this relief.  In Hamilton State Bank … Continue Reading

Eleventh Circuit holds that a credit reporting agency can be held liable for emotional distress damages even though it never communicated erroneous credit information to a third party

In Collins v. Experian Information Solutions, Inc., No. 14-11111 (11th Cir. January 5, 2015), the plaintiff sought to recover damages for emotional distress resulting from a credit reporting agency’s failure to reasonably investigate disputed information in his credit file.  Prior to the lawsuit before the court, Equable Ascent Financial, LLC sued Curtis Collins in small … Continue Reading

Georgia Appeals Court Holds that Guarantor Waived Right to Judicial Confirmation of Foreclosure Sale Price

A surprising ruling by the Georgia Court of Appeals may relax Georgia law’s requirement that foreclosure sales must be confirmed by the courts before the lender can pursue a deficiency against a guarantor of the debt.  O.C.G.A. § 44-14-161 provides, in part, that: When any real estate is sold on foreclosure, without legal process, and … Continue Reading

CFPB Signals Debt Purchaser Industry In Its Sights With New Lawsuit Against Georgia Law Firm

On July 14th, the Consumer Financial Protection Bureau filed suit against a debt collection law firm in federal district court in Atlanta, alleging in broad strokes that its practices— including some which are fairly common in the debt purchaser industry– systematically violate the Fair Debt Collection Practices Act (“FDCPA”) and the Consumer Financial Protection Act … Continue Reading

11th Circuit Holds that Filing Proof of Claim for Time-Barred Debt in Bankruptcy Court Violates the FDCPA

In recent years, there has been a growing consensus among the courts that a debt collector’s threat to file suit on a debt otherwise barred by the applicable state statute of limitations violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§1692-1692p (2006). Now that consensus has been extended to proofs of claim in … Continue Reading

11th Circuit Sets Standard for Recovery Of Mental Anguish Damages for Violations of Bankruptcy Automatic Stay.

On May 8, 2014, the Eleventh Circuit Court of Appeals decided a question of first impression within the Circuit: whether a debtor may recover “mental anguish” damages for a creditor’s willful violation of the Bankruptcy Code’s automatic stay provision, 11 U.S.C. §362(k).  In Lodge v. Kondaur Capital Corporation, et al., No. 13-10919 (May 8, 2014), see … Continue Reading

Telephone Consumer Protection Act—Eleventh Circuit Holds That a Consumer’s Oral Revocation of Consent Is Enough

The last several years have seen a jump in the number of claims brought against businesses under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227.  Among other things, this statute bars businesses and debt collectors from using automatic telephone dialing systems to call a consumer’s cell phone without their express consent.  The increase in … Continue Reading

Alabama Supreme Court Clarifies Rules on Foreclosure of Condominium Units

Condominium associations in Alabama have faced considerable confusion regarding the proper procedure for foreclosing on residential units for unpaid assessments.  That confusion stemmed from the existence of two separate statutory foreclosure procedures under the Alabama Code. Alabama Code Section 35-8-17 provides that a condominium association shall have a lien on each unit for unpaid assessments … Continue Reading
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