FYI: 10th Cir Clarifies "Regularly Collects" Standard in FDCPA, Follows 2nd Cir Rule

The U.S. Court of Appeals for the Tenth Circuit recently confirmed that an attorney did not qualify as a debt collector under the federal Fair Debt Collection Practices Act, where debt collection activities were only an incidental part of the attorney's practice. 

 

A copy of the opinion is available at http://www.ca10.uscourts.gov/opinions/12/12-8076.pdf.

 

An attorney ("Attorney") filed a debt collection action against a consumer.  The consumer filed counterclaims.  The Attorney failed to timely respond to the consumer's counterclaims, and the lower court entered a default judgment against the Attorney. 

 

The Attorney then retained another attorney to represent her who, apparently not knowing of the order for default, filed an untimely response to the consumer's counterclaims, and served him with amended initial disclosures, which included an estimate of legal fees.  These disclosures were inaccurate, which the Attorney's counsel acknowledged in a later response to the consumer's discovery requests. 

 

The consumer then filed the instant action under the federal Fair Debt Collection Practices Act ("FDCPA"), alleging that the Attorney's counsel's conduct in the debt collection action violated the FDCPA.  The Attorney's counsel moved for summary judgment, arguing that she was not a "debt collector" under the FDCPA, and therefore that its provisions did not apply to her.  The lower court agreed, and granted the Attorney's counsel's motion.  The consumer appealed. 

 

As you may recall, the FDCPA defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any dates, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another."  15 U.S.C. Sec. 1692(a)(6). 

 

The Tenth Circuit noted that the resolution of this matter hinged on what constitutes "regularly" collecting debts for the purposes of the FDCPA, which it described as an issue of first impression.  Accordingly, the Tenth Circuit scrutinized the applicable legislative history, and based on that analysis determined that "this much seems clear: [regular collection of debts] cannot be isolated or incidental but must, to varying degrees, be a significant aspect of an attorney's business." 

 

The Tenth Circuit next considered the Second Circuit's analysis concerning how to determine whether debt collection activity is regular.  It noted that the Second Circuit determined that the relevant considerations include, among others, "the absolute number of debt collection communities;" "the frequency of such communications and/or litigation activity;" "whether the entity has personnel specifically assigned to work on debt collection activity;" and "whether the entity has systems or contractors in place to facilitate such activity." Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 62-63 (2d Cir. 2004) 

 

The Tenth Circuit adopted the Second Circuit's standard, and held that "courts must consider these factors in determining whether an attorney or law firm 'regularly' engages in debt collection..." 

 

With that standard in place, the Tenth Circuit had little difficulty in affirming the lower court's decision.  To reach that conclusion, the Tenth Circuit relied on the Attorney's counsel's affidavit indicating that matters related to debt collection constitute a small fraction of her caseload, and that the Attorney's counsel had no employees hired for the purpose of debt collection.  Therefore, the Tenth Circuit noted that "[t]he record does not demonstrate that [the Attorney's counsel] engages in debt collection with any sort of regularity..."

 

Accordingly, the Tenth Circuit held that the Attorney's counsel "does not qualify as a 'debt collector' under the FDPCA," and affirmed the lower court's ruling.  

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
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Email: RWutscher@mwbllp.com

 

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FYI: Md App Ct Rejects Borrower's Allegations of "Robo-Signing," Bad Faith, and Inadequate Legal Representation

The Court of Special Appeals of Maryland recently rejected a borrower's attempt to reopen a completed foreclosure case, based upon allegations of "robosigning," bad-faith, and inadequate legal representation.  In doing so, the intermediate appellate court affirmed the trial court's dismissal of the borrower's motion.

 

A copy of the reported opinion is available at: http://www.mdcourts.gov/opinions/cosa/2013/1250s11.pdf

 

The borrower had previously challenged the foreclosure sale, but ultimately withdrew her efforts after she determined that she could not financially afford the loan, following discussions of loan modification and other loss mitigation options.  After she withdrew this challenge, the trial court ratified the sale. 

 

Sixty-five days after the case was closed, the borrower filed a pro se motion to dismiss the foreclosure proceeding, and requested a hearing.  In her motion, she alleged that the signatures of the substitute trustees were fraudulent, the lender acted in bad faith, and that she had inadequate legal representation during the course of the foreclosure proceeding. 

 

The trial court denied her motion without a hearing, determining that her motions were not timely filed under the Maryland foreclosure rules, and that her only avenue for relief was to assert fraud, mistake, or irregularity under Maryland Rule 2-535(b).  The trial court also determined that such claims failed to establish the requisite extrinsic fraud, and therefore did not warrant reopening the case. 

 

On appeal, the Court of Special Appeals affirmed. 

 

As you may recall, in Maryland, a ratified foreclosure sale is res judicata as to the validity of such sale, except in the case of fraud or illegality.   Once final, a court will not reopen such judgment, except in certain cases of fraud, mistake, or irregularity, which must be shown by clear and convincing evidence. 

 

In rejecting the borrower's claims, the Appellate Court determined that the borrower failed to meet this standard.  The Court explained that allegations of irregularity required something more than legal error, and that if the judgment under attack was entered in conformity with the practices and procedures commonly used by the court that entered it, there is no irregularity.

     

As to fraud, under Maryland precedent, the movant must show extrinsic fraud, which would have prevented an adversarial trial, rather than intrinsic fraud, which occurs in the court of the proceeding. "[O]nce parties have had the opportunity to present before a court a matter for investigation and determination, and once the decision has been rendered and the litigants, if they so choose, have exhausted every means of reviewing it, the public policy of this State demands that there be an end to that litigation . . ."  Slip Op. at 5.

 

In addition, for a court to reopen the case due to mistake, it must involve a jurisdictional error, such as where the court lacks the power to enter judgment.

     

Applying these principles, the Appellate Court observed that despite the borrower's attack upon the foreclosure and foreclosure documentation, the record was "devoid of even a hint of irregularity that would warrant re-opening of this ratified foreclosure sale."  Nor did the borrower present any allegations of jurisdictional mistake. 

      

Moreover, rejecting the borrower's attack on the foreclosure due to allegations of fraudulent signatures and affidavits, the Appellate Court held that such claims did not rise to the level of extrinsic fraud.   "The alleged fraud did not prevent an adversarial trial, but had such existed, would have been contained within the trial itself."  Slip Op. at 6.  Indeed, the Court noted that the borrower herself alleged that the fraud was discovered prior to sale, one year earlier in 2009.

     

Consequently, the Appellate Court held that, "[i]n narrowly construing the terms of irregularity, fraud, and mistake, and considering the public policy favoring finality of judgments, we conclude that the facts do not warrant the setting aside of the ratified foreclosure proceedings.  Accordingly, the circuit court did not abuse its discretion by denying appellant's motions." Slip Op. at 6.

     

As a separate issue, the Appellate Court held that the borrower was not entitled to a hearing upon her motion, because Rule 2-311(f), which governed whether a hearing was required, mandated a hearing only when the court's ruling was dispositive of a claim or defense.   "The dispositive action in this case was the ratification of the sale itself, not the denial of appellant's motion to re-open." Slip Op. at 7.   Accordingly, the Appellate Court held that a hearing was not required and the trial court did not err by denying [the borrower's] motions without holding a hearing.

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

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FYI: 8th Cir Holds "Informational Injury" Sufficient to Allow Standing to Sue Under EFTA, Reversing Lower Court

Reversing two lower court rulings, the U.S. Court of Appeals for the Eighth Circuit recently held that a consumer who alleged violations of the Electronic Fund Transfer Act had Constitutional standing to sue, where the consumer used an ATM machine that included only one of the two then-required disclosures of the applicable transaction fee. 

 

A copy of the opinion is available at: http://media.ca8.uscourts.gov/opndir/13/08/122790P.pdf

 

A consumer sued two banks separately, alleging violations of the Electronic Funds Transfer Act ("EFTA").  Specifically, the consumer alleged that when he made several withdrawals from the banks' various ATM machines, he received electronic notice of the applicable fee - and consented to same - but that notice of the fee was not posted on the ATM machine, as required under the EFTA at the time of the applicable transactions. 

 

The banks moved to dismiss the consumer's complaint, arguing that the consumer lacked standing.  The lower courts each granted the banks' motions, and the consumer appealed.  The Eighth Circuit consolidated the two actions for appeal. 

 

As you may recall, the EFTA provided at the time of the transactions in question that ATM operators provide two forms of notice - one on-screen, and one on the machine itself.  See 15 U.S.C. Sec. 1693b(d)(3)(B)(i)-(ii).  (The statute has since been amended to remove the latter of the two requirements.)  The EFTA provided for actual and statutory damages to consumers for related violations.  Id. at 1693(m)(8). 

 

The sole issue facing the Eighth Circuit on appeal was whether the consumer had standing to sue.  Accordingly, the Eighth Circuit began its analysis by noting that in order to have standing, a plaintiff must show an "injury in fact" that is "fairly traceable" to the actions of the defendant.  See, e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009).  The injuries must be "concrete and particularized" as well as "actual or imminent, not conjectural or hypothetical."  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 

 

On appeal, the consumer contended that his "injury in fact" consisted of being charged an illegal fee of $2.00, as well as an informational injury due to the banks' failure to provide the required notice. 

 

The Eighth Circuit agreed with the consumer, determining that once he "alleged a violation of the notice provisions of the EFTA in connection with his ATM transactions, he had standing to claim damages."  In so holding, the Eighth Circuit observed that "[i]f [the notice required by the EFTA] was not provided and a fee was nonetheless charged, an injury occurred..." 

 

The banks argued that the plaintiff's claims of injury were abstract and therefore precluded by Article III of the U.S. Constitution.  The Eighth Circuit agreed that an abstract claim would be precluded, but determined that the consumer's complaint was "concrete and personal."  For that reason, the Eighth Circuit held that the consumer "has satisfied the injury in fact requirement of standing." 

 

The banks also contended that the consumer's alleged injury was not "fairly traceable" to the banks' conduct, on the grounds that when the consumer received on-screen notice of the fee and consented to same, any causal link between the banks' behavior and the alleged injury was broken. 

 

The Eighth Circuit again found the banks' argument unpersuasive, noting that if the banks "had not violated the EFTA's notice requirement, [the consumer] would not have been forced to choose between engaging in a transaction without the required notice and walking away.  Thus, we conclude [the consumer's] injury was fairly traceable to [the banks'] conduct." 

 

Accordingly, the Eighth Circuit reversed the judgment of the lower court, and remanded the matter for further proceedings consistent with its opinion.   

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

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FYI: 7th Cir Reinstates Prior Class Certification Ruling, Distinguishing Comcast v. Behrend

The U.S. Court of Appeals for the Seventh Circuit recently distinguished the U.S. Supreme Court's decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013) – which held that a damages claim cannot be certified as a class unless the damages sought are the result of the class-wide injury that the suit alleges – ruling that there was a single, central, common issue of liability, and therefore predominance was satisfied and class certification was proper under Federal Rule of Civil Procedure 23(b)(3).

 

In so ruling, the Seventh Circuit reinstated its judgment, certifying two separate classes after the Supreme Court vacated the Seventh Circuit's ruling and remanded for further proceedings. 

 

A copy of the opinion is available at: Link to opinion.

 

A seller sold washing machines in overlapping periods beginning in 2001 and 2004, with two separate alleged issues.  One set of washing machines allegedly used low volume and temperature of water, which did not allow the washing machines to clean themselves adequately.  This supposedly resulted in mold accumulation and bad odors (the "mold class").  Traditional household cleaners allegedly did not eliminate the molds or the odors. Roughly 200,000 of these machines were sold each year and there allegedly have been many thousands of complaints of bad odors by the machines' owners.

 

The district court denied certification of the mold class.  On appeal, the Seventh Circuit previously reversed, finding that a class action is an efficient procedure for litigating such a case – one that involved a defect that may have imposed costs of tens of thousands on consumers, yet not a cost large enough for any single plaintiff to justify the expense of a single suit.  The Seventh Circuit ruled that the question of whether the machines' defect in permitting mold to accumulate and generate noxious odors was common to the entire class, despite there being likely variance in damage across the class members.

 

The second class action involved a computer device that gives instructions to a washing machine's various moving parts (the "control unit class"). In 2004 the company that supplied these control units in the manufacturer's washing machines allegedly altered its manufacturing process in a way that caused some control units mistakenly caused the computer to "believe" that a serious error had occurred and therefore to order the machine to shut down, though actually there had been no error. The control unit class plaintiffs alleged that the seller knew about the problem yet charged each owner of a defective machine hundreds of dollars to repair the central control unit.

The principal issue in the control unit class action was whether the control unit was defective. The only individual issues concern the amount of harm to particular class members, as pointed out by the Seventh Circuit was whether it was more efficient for the principal issue—common to all class members—to be resolved in a single proceeding than for it to be litigated separately in hundreds of different trials.

 

The district court granted certification of the control unit class.  On appeal, the Seventh Circuit previously affirmed.

 

Following the U.S. Supreme Court's decision in Comcast, the Supreme Court vacated the Seventh Circuit's ruling and remanded for further proceedings.  The question presented by the Supreme Court's remand was whether the Comcast decision cut the ground out from under the Seventh Circuit's decision ordering that the two classes be certified. 

 

On remand, the seller requested that the Seventh Circuit remand the case to the district court for a fresh ruling on certification in light of Comcast, or alternatively to deny certification in both class actions. The class plaintiffs requested the Seventh Circuit reinstate its judgment, granting certification in both.

 

Although the case remained pending in the district court, the Seventh Circuit ruled on certification because class action suits are tentative and can be revisited by the district court as changed circumstances require. Fed. R. Civ. P. 23(c)(1)(C); Advisory Committee Notes to 1966 Amendment of Rule 23(c)(1); Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184, 1202 n. 9 (2013); Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d 364, 370 (7th Cir. 2012).

 

The Seventh Circuit analyzed the impact of the Comcast decision on its initial rulings.  The Seventh Circuit recognized that "Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges." Comcast was an antitrust suit, and the Court said that "if [the plaintiffs] prevail on their claims, they would be entitled only to damages resulting from reduced over builder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the District Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3)."" Comcast, 133 S. Ct. at 1433. "[A] methodology that identifies damages that are not the result of the wrong" is an impermissible basis for calculating class-wide damages." Id. at 1434.

 

The seller argued that the Comcast decision rejects the notion that efficiency is a proper basis for class certification, and thus rejected the Seventh Circuit's statement that "predominance" of issues common to the entire class, a requirement of a damages class action under Rule 23(b)(3), "is a question of efficiency." 

The Seventh Circuit ruled that the seller incorrectly compared the design changes that may have affected the severity of the mold problem to the different antitrust liability theories in Comcast. The Seventh Circuit concluded that it was not the existence of multiple theories in Comcast that precluded class certification; rather, it was the plaintiffs' failure to base all the damages they sought on the antitrust impact—the injury—of which the plaintiffs were complaining.

 

Unlike the class plaintiffs in Comcast, the Seventh Circuit held any buyer of the subject washing machine who experienced a mold problem was harmed by a breach of warranty alleged in the complaint.

 

The Seventh Circuit found Comcast distinguishable from the case at hand: "Unlike the situation in Comcast, there is no possibility in this case that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class to a defect in the control unit."

 

The Seventh Circuit further concluded that the Supreme Court remanded the case for reconsideration because of the requirement of predominance and on its having to be satisfied by proof presented at the class certification stage rather than deferred to later stages in the litigation.  The Seventh Circuit ruled that the Supreme Court "doesn't want a class action suit to drag on for years with the parties and the district judge trying to figure out whether it should have been certified."

Further clarifying, the Seventh Circuit noted that because the class in Comcast was seeking damages beyond those flowing from the theory of antitrust injury alleged by the plaintiffs, the possibility loomed that "questions affecting only individual members" of the class would predominate over questions "common to class members," rather than, as Rule 23(b)(3) requires, the reverse.

 

The Seventh Circuit rejected the seller's argument that predominance is determined by examining whether there are more common issues or more individual issues, regardless of relative importance. The Seventh Circuit recognized an issue "central to the validity of each one of the claims" in a class action, if it can be resolved "in one stroke," can justify class treatment.  Wal-Mart Stores, Inc. v. Dukes, supra, 131 S. Ct. at 2551.

 

Moreover, the Seventh Circuit concluded that predominance requires a qualitative assessment, citing to the Supreme Court's ruling in In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, supra, 133 S. Ct. at 1196, where the Supreme Court said that the requirement of predominance is not satisfied if "individual questions…overwhelm questions common to the class," and in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997), where the Supreme Court stated that the "predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."

 

According to the Seventh Circuit, if each class member were required to have identical damages, class actions seeking damages would be impracticable.  The Seventh Circuit continued "[i]f the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification."

 

The Seventh Circuit posited the implications of such a ruling: if damages were required to be identical, defendants could escape wide scale liability that could not be remedied through individual suits. 

 

The Seventh Circuit ruled that there was a single, central, common issue of liability: whether the seller's washing machine was defective. Two separate defects were alleged, but the pending suit was essentially two class actions. In one the defect allegedly involved mold, in the other the control unit. Each defect was central to liability.  Although the Seventh Circuit acknowledged that there may be complications arising from the design changes and from separate state warranty laws, the Seventh Circuit provided that this could be handled by the creation of subclasses.
 
Lastly, the Seventh Circuit noted that the Sixth Circuit upheld the certification of a single mold class in a nearly identical suit, except that it did not involve the other claim in the pending case, the control unit claim.  The Sixth Circuit interpreted Comcast similarly to the Seventh Circuit, and concluded that the requirement of predominance was satisfied.

 

Accordingly, the Seventh Circuit reinstated its judgment.

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

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FYI: 6th Cir Affirms Dismissal of ECOA Allegations for Failure to Identify Similarly Situated Individuals Whom the Lender Treated Better

The U.S. Court of Appeals for the Sixth Circuit recently affirmed the dismissal of a complaint alleging a violation of the federal Equal Opportunity Credit Act, because the plaintiff failed to allege sufficient facts to support his allegations that similarly-situated Caucasian borrowers had received better treatment than he, in light of the fact that the borrower did "not identif[y] any similarly situated individuals whom [the bank] treated better."

 

A copy of the opinion is available at http://www.ca6.uscourts.gov/opinions.pdf/13a0227p-06.pdf

 

A bank extended a loan to an entity owned by an individual of Iraqi descent (the "borrower").  The borrower guaranteed the loan, and various companies operated by the borrower put up collateral for same. 

 

The borrower defaulted, but reached an agreement to restructure the loan with the bank.  When the borrower allegedly requested an additional extension of the deadline to repay the loan, the bank allegedly refused, notwithstanding the borrower's alleged offer of additional collateral and the guarantee of the borrower's wife.  The borrower allegedly requested an explanation, which the bank supposedly refused to provide. 

 

The borrower and the various relevant entities operated by the borrower then sued the bank, alleging violations of the Equal Credit Opportunity Act, 15 U.S.C. Sec. 1691 et seq (the "Act").     

 

The lower court granted the bank's Rule 12(b)(6) motion to dismiss.  The borrower appealed. 

 

As you may recall, Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

 

On appeal, the Sixth Circuit began by surveying two Supreme Court decisions which interpret Rule 8(a)(2).  The Sixth Circuit summarized these decisions as confirming that Rule 8(a)(2) "imposes legal and factual demands on the authors of complaints."  See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ("Twombly") and Ashcroft v. Iqbal, 556 U.S. 662 (2009) ("Iqbal").  

 

After examining these two decisions in depth, the Sixth Circuit noted that in their aftermath, plaintiffs cannot overcome a Rule 12(b)(6) motion to dismiss "simply by referring to conclusory allegations in the complaint that the defendant violated the law."  Instead, the Sixth Circuit stated that plaintiffs must plead "factual matter" sufficient to raise a plausible inference of wrongdoing.  To determine the plausibility of an inference, courts must consider "a host of considerations including common sense and the strength of competing explanations for the defendant's contact".  See Iqbal, 556 U.S. at 682; Twombly, 556 U.S. at 567. 
   
With that standard in place, the Sixth Circuit had little difficulty in sustaining the lower court's decision to dismiss the complaint.  It observed that the borrower's "Iraqi origin does not by itself establish the requisite inference."  Further, it found a plausible non-discriminatory explanation for the bank's conduct, noting that "a bank, once bitten by the failure to receive repayment of an initial loan on time, may understandably become twice shy about restructuring a loan a second time." 

 

The Sixth Circuit acknowledged that the borrower's pleadings alleged that similarly-situated Caucasian borrowers had received better treatment than he.  However, the Sixth Circuit determined that this allegation was not enough to survive the bank's motion to dismiss, in light of the fact that the borrower did "not identif[y] any similarly situated individuals whom [the bank] treated better."

 

Accordingly, the Sixth Circuit determined that "[t]hese are precisely the kinds of conclusory allegations that Iqbal and Twombly condemned and thus told us to ignore when evaluating a complaint's sufficiency," and therefore affirmed the lower court's decision to dismiss the borrower's complaint.    

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

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