Tag Archive for: 11th Circuit

Crawford Claim For Time Barred Debts

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In Crawford v. LVNV Funding, LLC, the court held that a debt collector violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, when it files a proof of claim in a bankruptcy case on a debt that it knows to be time-barred.  The court concluded that, although the Code allows all creditors to file proofs of claim in bankruptcy cases, the Code does not at the same time protect those creditors from all liability.  Debt collectors – may be liable under the FDCPA for bankruptcy filings they know to be time-barred.  http://law.justia.com/cases/federal/appellate-courts/ca11/15-11240/15-11240-2016-05-24.html

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

HAMP does not Create Private Cause of Action

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The Eleventh Circuit Court of Appeals  recently held that the Home Affordable Modification Program (“HAMP”) does not create a private cause of action.  

the parties had a temporary modification in place, and athough the two parties agreed to a temporary modification, the lender then indicated that it would not extend a permanent loan modification to the borrower.     

The borrower sued, alleging that the lender had not complied with its obligations under HAMP. The borrower alleged breach of contract and promissory estoppel, among other claims, in connection with his HAMP allegations. 
HAMP does not expressly create a private right of action for borrowers, the Eleventh Circuit began its analysis by reviewing the relevant factors to determine whether HAMP might create an implied right of action: (1) whether the plaintiff is one of the class for whose “especial benefit” the statute was enacted; (2) whether there is any indication of legislative intent for or against the creation of a private right of action; (3) whether an implied remedy for the plaintiff is consistent with the purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law. 
After consideration of those factors, the Eleventh Circuit held that “it is clear that no private right of action exists” under HAMP. 
The Court found the purpose of the Emergency Economic Stabilization Act of 2008 and HAMP, was to “restore liquidity and stability to the financial system of the United States.”  12 U.S.C. Sec. 5201(1).  Further, the Court found no evidence of legislative intent to create a private right of action. 
http://www.ca11.uscourts.gov/opinions/ops/201115166.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

 

11th Cir Compels Arbitration in Overdraft Fee Putative Class Action, Severs Allegedly Unconscionable Fee Shifting Provision from Arbitration Provision

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The Eleventh Circuit Appeals held in a putative class action that:  (1) the Federal Arbitration Act did not preempt South Carolina law regarding the contract defense of unconscionability; (2) a fee-shifting provision in a bank’s deposit account agreement containing a separate mandatory arbitration provision was unconscionable and thus unenforceable; (3) the fee-shifting provision was severable from the arbitration provision; and  (4) the mandatory arbitration provision was thus enforceable.
A bank depositor filed a putative class action against Bank,  regarding charged overdraft fees on checking accounts.
 
The district court denied Banks’  motion to compel arbitration, ruling that the arbitration agreement was unconscionable and thus unenforceable under South Carolina law.  Bank appealed the ruling.
The bank appealed twice!   In light of the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S CT. 1740 (2011)(“Concepcion”), the Eleventh Circuit remanded with instructions to compel arbitration, ruling that, severed from the unconscionable Fee-Shifting Provision, the mandatory arbitration provision was enforceable.
 
The Eleventh Circuit noted that the FAA did not preempt “‘generally applicable contract defenses’ provided by state law ‘such as fraud, duress, or unconscionability’”  See Concepcion, 131 S.Ct. at 1746. South Carolina’s test for unconscionability applied equally to arbitration as well as other agreements.  See, e.g., Community State Bank v. Strong, 651 F.3d 1241, 1267 (11th Cir. 2011).
 
Concluding that the terms of the Fee-Shifting Provision were unconscionable under South Carolina law, the Eleventh Circuit ruled that the Fee-Shifting Provision was unenforceable. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)(losing parties normally not entitled to recover costs and fees). 
  
http://www.ca11.uscourts.gov/opinions/ops/201114318.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: calh@gate.net

 

Time Barred Debt in Chapter 13

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Debts that are past the statute of limitations are considered time-barred debts. The following case law  sho0ws that time-barred debts are not allowed in the Eleventh Circuit, which is Florida’s Circuit.

Crawford v. LVNV Funding LLC  785 F3d 1254 (11th Cir. July 10,2014) 

Proof of claim was filed on a time-barred debt in Chapter 13. this was a violation of  1692e- which prohibits  ” any false, deceptive, or misleading representation or means in connection with the collection of any debt” and Section 1692f which prohibits a debt collector from using ” unfair or unconscionable means to collect or attempt to collect any debt.”

Creditors filing bankruptcy proofs of claims will now be subject to the FDCPA, at least in the Eleventh Circuit, but there is renewed hope for certain defenses, such as the litigation privilege.

https://scholar.google.com/scholar_case?case=15631228362360253615&q=Crawford+v.+LVNV+Funding+LLC++785+F3d+1254+&hl=en&as_sdt=40006

Bazemore v Jefferson Capital Systems LLC  (SD Georgia, May 15,2015)

Jefferson motion to enforce arbitration was ruled groundless  with regards to the FDCPA claim.

https://scholar.google.com/scholar_case?case=10648902652621483690&q=Crawford+v.+LVNV+Funding+LLC++785+F3d+1254+&hl=en&as_sdt=40006

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

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

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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 counterpart, the Florida Consumer Collection Practices Act (FCCPA).  

The action was dismissed  with prejudice a borrower’s action under both the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692(e)(2) and (f)(1) (“FDCPA”) and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.72(9) (“FCCPA”), confirming that communications directly solely to a debtor’s attorney are not actionable.

The Eleventh Circuit’s “least sophisticated consumer” test, a communication might violate the FDCPA if the language used by the debt collector tends to mislead the least sophisticated recipients of a debt collector’s letters and telephone calls does not apply to attorneys for borrower.

Order and Opinion (11Feb15) – Dismissal w Prejudice

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

 

11th Cir Holds Lower Court Erred in Holding Bank Waived Arbitration as to Unnamed Putative Class Members

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The Eleventh Circuit  Court of Appeals in  In Re Checking Account Overdraft Litigation, Celia Spears-Haymond held that District Court erred in ruling that a bank waived its rights to compel arbitration of unnamed putative class members’ claims.

The lower court lacked jurisdiction to resolve issues involving unnamed putative class members prior to certification, and that the named plaintiffs lack standing.  Accordingly, the Eleventh Circuit reversed the district court’s order.

Plaintiff’s were consolidated into case number 13-12082 previously had 5 separate class actions regarding bank overdraft charges pending.

http://media.ca11.uscourts.gov/opinions/pub/files/201312082.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Bank of America v Caulkett

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Bank of America v. Caulkett (March 24 US Supreme Court Hearing) — A complex bankruptcy issue: When there are multiple liens on a property, can the debtor “strip off” junior mortgage liens if the debt owed a senior lien holder exceeds the value of the property? (Bank of America v. Toledo-Cardona also deals with the same issue and will be heard on the same day.)

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Fair Debt Collection Act and Offer of Setttlement

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The U.S. Court of Appeals for the Eleventh Circuit held that a settlement offer for alleged violations of the federal Fair Debt Collection Practices Act does not deprive the district court of subject matter jurisdiction due to mootness, if the settlement offer does not also include an offer of judgment.    
 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

U.S. Supreme Court Agrees to Review Florida Chapter 7 Lien Strip Cases

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The U.S. Supreme Court agreed earlier this week that it would hear the cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona following the bank’s appeal in both cases, which were both decided in favor of the homeowners by the 11th Circuit U.S. Court of Appeals back in May. The Supreme Court said in granting the petition on Monday that it would consolidate the two cases and allot one hour for oral arguments.

This is not good for chapter 7 debtors in Alabama, Georgia, or Florida because the Supreme Court might disagree with Eleventh Circuit decisions that currently allow lien strips in chapter 7 cases. An unfavorable decision could potentially invalidate numerous previous lien strips in chapter 7 cases in these states.

The 1992 case of Dewsnup will be clarified. Is there a distinction between strip offs and strip downs in Ch. 7 as the 11th Circuit believes, or not?  Stay Tuned.

 

False Claim under FDCPA

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The Eleventh Circuit held that debtors’ complaint stated a false representation claim under the federal Fair Debt Collection Practices Act, where the debt validation/1692g notice identified the loan servicer who started servicing the loan after it was in default as the creditor.”

The Lender transferred the serving rights to the mortgage and note. The Loan Servicer hired a law firm to foreclose. The law firm sent a notice to the Debtor stating that the notice was being sent pursuant to the federal Fair Debt Collection Practices Act (“FDCPA”) to collect on the debt. The notice also identified the loan servicer as the creditor on the loan.

The Debtor filed suit against the Law Firm in federal district court, claiming that the notice sent to him by the Law Firm violated Section 1692e of the FDCPA by falsely representing that the loan servicer was the creditor on the loan. The Debtor claimed that the loan servicer, having been assigned a debt already in default solely for purposes of collecting on the debt, was not a creditor under the FDCPA. The Court found that even if the loan servicer were not a creditor under the FDCPA, it was harmless error to use the term with respect to the servicer, because the loan servicer had the authority to foreclose and otherwise act as the creditor on the loan. See 15 U.S.C. § §1692a(40; 15 U.S.C. §§ 1692e, 1692g(a)(2), 1692k(a).

However, the Court found that the Debtor’s complaint contained allegations as to the date of default, that the debt was assigned to the loan servicer after the default, thus the law firm violated the FDCPA by falsely identifying the loan servicer as the creditor in its debt collection notice.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net