Monthly Archives: October 2016

Maurice Wutscher’s Donald Maurice Quoted in CreditCards.com Article

2ake0qaj_400x400Oct. 25, 2016 — Maurice Wutscher attorney Donald Maurice is quoted in a CreditCards.com article regarding the Consumer Financial Protection Bureau’s oversight of credit unions and new guidelines emerging from a recent CFPB consent order.

The article, “CFPB orders halt to ‘security interest’ debt collection practice; Navy Federal was fined $28.5 million over credit union practice of freezing accounts,” is available here.

Maurice Wutscher Attorneys Discuss Debt Collection and Bankruptcy in Business Law Today

Oct. 21, 2016 — Maurice Wutscher attorneys Donald Maurice, Eric Rosenkoetter, Keith Wier and Brent Yarborough have written articles for Business Law Today’s mini-theme Debt Collection and Bankruptcy in its October issue.

Maurice, who is chair of the Bankruptcy and Debt Collection Subcommittee of the Consumer Financial Services Committee, introduces the mini-theme and gives historical context of the federal Fair Debt Collection Practices Act and the changing face of the debt collection industry.

“When originally enacted, the FDCPA did not provide any agency with rulemaking authority. As a result, the statute has gone largely unaltered. But the debt collection industry has dramatically changed with the emergence of debt buying entities and large-scale securitization of consumer debt. New technologies such as paperless transactions, the ubiquitous use of cell phones, text messaging, and even voice mail hardly mesh with the 1970’s-era FDCPA,” Maurice writes.

With Dodd-Frank giving the CFPB the authority to promulgate rules under the FDCPA, this summer the CFPB released an outline of proposals subject to the FDCPA.

In The CFPB’s Outline of Debt Collection Proposals: A Look Into the Past and Future, Rosenkoetter and Wier provide a summary and analysis of the CFPB’s outline. Their article examines past events leading to the outline and the effect the proposals may have on debt collectors, debt buyers, and creditors.

“Fortunately, most estimates place implementation of the final rule in 2019, which provides ample time to consider what it would take to comply with rules similar to those in the Outline. Although it might be premature to implement changes based on mere proposals, time remains to develop implementation strategy, prioritization, and anticipated cost so that when the time comes, a plan is in place for quick implementation and testing of any new technologies, policies, and procedures,” write Rosenkoetter and Wier.

In Do You Think Banks Are Debt Collectors? The CFPB and the FTC Do, Yarborough, along with Jolina Cuaresma and Katherine Lamberth, discuss the CFPB’s debt collection rulemaking process. The CFPB’s outline of proposals is aimed solely at “debt collectors” subject to the FDCPA. However, due to a growing circuit split over the scope of the definition of “debt collector” for purposes of the FDCPA, it is unclear whether banks and other creditors that collect on debts acquired in default fall within the ambit of the CFPB’s proposals, they write.

Finally, Maurice looks at the intersection of the FDCPA and bankruptcy law, particularly when debt collectors file proofs of claim for consumer debts subject to expired statutes of limitations in The Growing Circuit Split on Proofs of Claim for Time-Barred DebtWhether the filing of a proof of claim for a debt subject to an expired limitations period violates the FDCPA has divided four Circuit Courts of Appeals in the course of two years.

“The Fourth (Dubois v. Atlas Acquisitions, LLC), Seventh (Owens v. LVNV Funding LLC), and Eighth (Nelson v. Midland Credit Management Inc) Circuit Courts of Appeals all agreed that time-barred debts that can be lawfully collected under state law are claims, and a creditor’s mere filing of a proof of claim subject to an expired limitations period is not false, deceptive, or misleading. These decisions also point to the existing protections bankruptcy courts provide debtors under both the Bankruptcy Code and Rules, and to the desire to bring all claims that can be asserted against debtors within the bankruptcy process,” Maurice writes.

The issue is now before the U.S. Supreme Court. The article examines the controversy and its implications for creditors and debtors under the bankruptcy code.

Business Law Today is published by the American Bar Association’s Business Law Section.

Maurice Wutscher Attorneys to Speak at NARCA Fall Conference

fall16_web_banner_600x150Oct. 19, 2016 — Maurice Wutscher attorneys Keith Wier and Brent Yarborough will speak at NARCA’s 2016 Fall Conference in Las Vegas next week.

Wier will be among a panel of speakers to discuss three recent Supreme Court decisions affecting consumer financial services law in “The Supreme Court’s Trilogy on Consumer Law – Gomez, Spokeo and Gillie – How Will These Opinions Affect Your Practice?” The decisions are expected to have a significant impact on statutory claims brought by consumers; the presentation will review the decisions and explore how courts from around the country have been interpreting and applying these decisions.

Yarborough will moderate “The Road to Regulatory Certainty – Where Are We Today with CFPB Regulations.” The panel discussion will provide an update on the CFPB rulemaking process and explain how its proposals may affect the debt collection industry.

In addition, Yarborough will participate in “It’s All About the Fees: Get Yours and Defend Against Theirs.” In this session, panelists will discuss strategies businesses can take both to reduce their exposure to attorney’s fees and to recover fees from an opponent.

For more information, click here.

 

Maurice Wutscher’s Brent Yarborough to Speak at Virginia Creditors Bar Association

BrentYarboroughOct. 18, 2016 — Maurice Wutscher attorney Brent Yarborough will discuss the CFPB’s proposed debt collection rules at the Virginia Creditors Bar Association’s annual Collections Seminar on Oct. 20 in Williamsburg, Virginia.

In addition to a review of the CFPB’s rulemaking process for debt collection, the seminar will offer comprehensive discussions on issues pertaining to creditors’ rights and collections law throughout Virginia, including FDCPA defense and recent FDCPA decisions, bankruptcy, post judgment collections, and ethics.

The seminar offers six hours of CLE, including one hour of ethics, For more information, click here.

Maurice Wutscher Attorneys Author Articles for DBA Magazine

dbamagazine_fall2016cvr-1Oct. 18, 2016 — Maurice Wutscher attorneys Donald Maurice and Keith Wier discuss out-of-statute debt and recent circuit court decisions regarding the Fair Debt Collection Practices Act and the Bankruptcy Code in two articles for the fall issue of DBA Magazine.

In “Addressing the Sweeping Expanse of Out-of-Stat Debt,” Maurice and Wier offer guidance for debt buyers when dealing with time-barred debt.

“The question of the applicable limitations period is mostly specific to the facts and circumstances of each account. A company’s efforts to consider potential factors determinate of the applicable limitations period should be seen as a defensive measure to any claim arising from the failure to provide disclosures or even the filing of a lawsuit. Recent decisions appear to support the view that when a company makes a good faith effort to determine the applicable limitations period and when more than one limitations period could be deemed to apply, the error may not warrant FDCPA liability,” they write.

In “Proofs of Claim for ‘Time-Barred Debt’ Do Not Violate FDCPA, Majority of Courts of Appeals Now Rule,” Maurice writes, “As you may recall, in Crawford v. LVNV Funding LLC, the Eleventh Circuit held that a debt collector violates the federal Fair Debt Collection Practices Act (FDCPA) when it files a proof of claim in a bankruptcy case on a debt that it knows to be time-barred. More recently, in Johnson v. Midland Funding LLC, the Eleventh Circuit held that there is no irreconcilable conflict between the FDCPA and the Bankruptcy Code. The Crawford opinion launched a flood of litigation and, for the most part, the rationale of Crawford has been rejected by a majority of the trial and bankruptcy courts outside the Eleventh Circuit.”

“The growing split between the Eleventh Circuit and other Courts of Appeals increases the likelihood that this issue is headed to the U.S. Supreme Court,” Maurice predicted when writing the article in August. On Oct. 11, the Supreme Court decided it will review the decision of the U.S. Court of Appeals for the Eleventh Circuit in Johnson v. Midland Funding LLC.

DBA Magazine is published by DBA International and is available to members only. For more information, click here.