Tag Archives: FDCPA

The Least Sophisticated Podcast Delves Into Bankruptcy Law

Sept. 6, 2018 — The latest episode of  “The Least Sophisticated Podcast” hosted by Maurice Wutscher attorneys Eric Rosenkoetter and Brent Yarborough delves into bankruptcy law and its intersection with consumer protection laws such as the Fair Debt Collection Practices Act.

“Did You Check That Box?” features a discussion on proof of claim litigation with Maurice Wutscher’s Alan Hochheiser, a leading practitioner in the areas of creditors’ rights and bankruptcy law.

Named as a nod to the Fair Debt Collection Practices Act’s least sophisticated consumer provisions, the podcast is produced by AccountsRecovery.net for the accounts receivable management industry.

The podcast can be accessed for free on iTunes and Google Play or by clicking here.

The Least Sophisticated Podcast Features 2 New Episodes

June 28, 2018 — Maurice Wutscher attorneys Eric Rosenkoetter and Brent Yarborough are continuing their compliance podcast for the accounts receivable management industry, “The Least Sophisticated Podcast.”

Named as a nod to the Fair Debt Collection Practices Act’s least sophisticated consumer provisions, the podcast has released nine episodes so far.

The most recent episode discusses the Bureau of Consumer Financial Protection’s June 13 consent order with a holding company and its affiliated operating entities engaged in consumer lending.  This is the second consent order entered by the Bureau under Acting Director Mick Mulvaney.

Episode 8, “State Round-Up With David Reid,” delves into a discussion on what’s going on at the state level in the ARM industry with one of the most respected experts in government affairs.

The podcast can be accessed for free on iTunes and Google Play or by clicking here.

Maurice Wutscher’s Keith Wier Discusses Litigation Post Spokeo at TexasBarCLE Program

Sept. 15, 2017 — Maurice Wutscher attorney Keith Wier spoke today at the 13th annual Advanced Consumer and Commercial Law Course at the Texas Law Center in Austin.

The two-day continuing legal education program is sponsored by the State Bar of Texas’s TexasBarCLE and its Consumer and Commercial Law Section.

Wier’s talk examined Article III standing as decided by the U.S. Supreme Court in Spokeo, Inc. v. Robins and its impact since the May 2016 ruling on consumer financial services law including litigation involving the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act and the Fair Credit Reporting Act.

Keith Wier is a principal in the Austin office of Maurice Wutscher LLP where he focuses his practice on the defense of individual and class action suits under state and federal consumer statutes, professional liability defense, and compliance issues for members of the collection industry.

Webinars to Parse SCOTUS Ruling on Debt Buyer FDCPA Liability Under Henson v. Santander

June 13, 2017 — Maurice Wutscher’s Donald Maurice will participate in two webinars tomorrow discussing debt buyer FDCPA liability under the U.S. Supreme Court’s June 12 ruling in Henson v. Santander Consumer USA Inc.

The Court held that a purchaser of a defaulted debt who then seeks to collect the debt for itself is not a “debt collector” subject to the federal Fair Debt Collection Practices Act (FDCPA).

On June 14 at 12 p.m. ET, Maurice will participate in a webinar offered by the American Bar Association’s Consumer Financial Services Committee and RMA International. To call in to the webinar, click here.

On June 14 at 1 p.m. ET, AccountsRecovery.net will present a webinar in which Maurice will join a panel of defense attorneys to discuss the ruling, what it means for the accounts receivable management industry and what its participants should consider as part of their operations. Register for the webinar here.

Maurice Wutscher’s Donald Maurice Discusses SCOTUS Ruling in Law360

May 24, 2017 — Maurice Wutscher partner Donald Maurice is quoted in a Law360 article regarding the U.S. Supreme Court’s recent ruling in favor of Midland Funding in Midland Funding, LLC v. Johnson.

In a 5-3 decision, the Supreme Court held that the federal Fair Debt Collection Practices Act (FDCPA) is not violated when a debt collector files a proof of claim for a debt subject to the bar of an expired limitations period.

The petition came from the Eleventh Circuit, the only to hold the conduct violates the FDCPA; the theory was rejected by the Fourth, Seventh and Eighth Circuit Courts of Appeals.

Mr. Maurice successfully argued for the creditor in the Fourth Circuit case and as outside counsel to RMA International led a team of attorneys who authored a friend of the court brief on behalf of RMA in support of Midland.

The article, “Justices Stem Tide of Suits Against Stale Debt Collectors,” is available here.

Maurice Wutscher’s Donald Maurice to Discuss Pending Financial Services SCOTUS Case at ABA Spring Meeting

March 30, 2017 — Maurice Wutscher’s Donald Maurice will discuss the pending U.S. Supreme Court case Midland Funding, LLC v. Johnson and its potential impact on consumer financial services law on April 6 at the ABA’s Business Law Section Spring Meeting in New Orleans.

Mr. Maurice will be among a panel of speakers representing counsel for the parties and amici from the Midland Funding case as well as a sitting bankruptcy judge. Maurice Wutscher LLP filed an amicus curiae brief in the case on behalf of DBA International, Inc.

The panel will discuss how the decision may affect the Chapter 13 claims process and federal Fair Debt Collection Practices Act litigation. A primary issue before the Court is whether a creditor’s proof of claim for debt subject to an expired limitations period is a per se violation of the FDCPA.

The decision could impact not only creditors subject to the FDCPA, but all creditors participating in consumer bankruptcy cases. The petition comes from the Eleventh Circuit, the only to hold the conduct violates the FDCPA and the theory was subsequently rejected by the Fourth, Seventh and Eighth Circuit Courts of Appeals.

Mr. Maurice successfully argued the creditor case in the Fourth Circuit case.

For more information, click 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.

Mr. 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,” Mr. 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, Mr. Rosenkoetter and Mr. 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, Mr. 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, Mr. 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 Debt.Whether 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,” Mr. 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 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,” Mr. Maurice and Mr. 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,” Mr. 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,” Mr. 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.

Maurice Wutscher Attorneys to Speak at NARCA Meeting

May 3, 2016 — Several Maurice Wutscher attorneys will speak on recent developments in consumer financial services law at NARCA’s Spring Conference in Chicago this week.

Donald Maurice and Eric Rosenkoetter will be panel speakers for “Auto Deficiency, Replevin, Medical, and Foreclosure FDCPA Issues You Won’t See With Credit Cards.” The presentation will take a closer look at FDCPA claims arising from practices unique in the servicing and collection of mortgage and student loans, the collection of government debt, motor vehicle loans and medical debt. Panelists will discuss current case law and best practices to reduce liability when engaged in representing clients in these specialized areas.

Thomas R. Dominczyk will discuss “Bankruptcy for Collection Attorneys.” Dominczyk will examine the impact of bankruptcy on outside collection efforts, claim filing and management, and potential FDCPA applicability for actions within bankruptcy.

In “Vicarious Liability: How to Protect Yourself in This New Era of Regulatory Supervision,” Keith Wier will discuss vicarious liability, the effect of Dodd-Frank, the role and attitude of the CFPB and how to respond in this new regulatory environment.

Finally, Brent Yarborough will moderate “Regulation of the Collection Industry: How Much is Too Much?” Representatives from the Cato Institute, the CFPB, the University of Virginia School of Law, the Office of the Illinois Attorney General, and the FTC will participate in this panel discussion.

For more information, click here.

Maurice Wutscher is a national law firm focused on defense of the financial services industry. With offices throughout the United States, the firm’s skilled team of litigators specialize in appellate matters, business formation and transactions, class action litigation, commercial litigation, construction litigation, consumer credit litigation, contested bankruptcies, contested foreclosures, employment litigation, equine law, insurance recovery and advisory services, intellectual property litigation, regulatory compliance, and trials and evidentiary hearings.

Donald Maurice to Speak at Institute on Consumer Financial Services Basics

Sept. 24, 2015 — Maurice Wutscher attorney Donald Maurice will present on the latest issues in consumer bankruptcy and Fair Debt Collection Practices Act litigation at the Sixth Annual National Institute on Consumer Financial Services Basics on Oct. 8-9 in Arlington, VA.

The two-day program provides attorneys with up to 14 CLE credit hours and is presented by the Consumer Financial Services Committee of the American Bar Association’s Business Law Section and the Center for Professional Responsibility.

The institute is designed for attorneys new to consumer financial services law who want to learn from seasoned presenters with decades of practical experience in consumer finance. A classroom approach is used to review the history and background of consumer financial services and cover the fundamental laws that apply. Attendees will hear from regulators, consumer advocates, and industry representatives on the current state of affairs and what is on the horizon.

Key topics will include:

»  History and development of federal and state consumer financial services laws
»  Truth in lending and disclosure requirements
»  Fair lending
»  Financial privacy and credit reporting
»  Data security, fraud prevention, and identity protection
»  Consumer communications: FDCPA, TCPA, TSR, Can-Spam, and others
»  Asset account regulation
»  Installment lending
»  Mortgage origination and servicing
»  Litigation and enforcement actions

To learn more about and to register for the program, visit www.shopaba.org/2015consumer.  Colleagues of the program panelists will receive $100 off their non-government registration rate by entering discount code CE15CPDNIVIP at check-out.

Webinar to Review Credit Reporting Risks in Bankruptcy

Aug. 7, 2015 — Maurice Wutscher will give a webinar for the credit and collections industry on Aug. 19, “Credit Reporting and Bankruptcy – Latest Risks for Furnishers.”

Recent litigation suggests that both the content and the timing of furnished information before, during and after a consumer bankruptcy poses a unique risk to the credit and collections industry. The webinar will explore issues arising from recent litigation and how furnishers can contain their risk and enhance their credit reporting compliance.

For more information and to register, click here.