Friday, July 15, 2011

11th Cir Affirms FDCPA Ruling in Favor of Debt Collector in Telephone Message Case

In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently held that a debt collector’s telephone messages did not violate the federal Fair Debt Collection Practices Act (“FDCPA”),


15 U.S.C. § 1692, where the message identified the name of the caller, which included the term “Collection Bureau,” and specifically referenced the debtor’s personal file number.

A copy of the opinion is available at:
http://www.ca11.uscourts.gov/unpub/ops/201110560.pdf

Plaintiff-debtor (“Debtor”) brought suit against defendant-debt collector, Gulf Coast Collection Bureau, Inc. (“Gulf Coast”), alleging violations of the FDCPA and the Florida Consumer Collections Practices Act (“FCCPA”).

The Debtor’s allegations arose from a series of identical or nearly identical telephone messages from Gulf Coast which stated:

“This message is intended for Eric H. Beeders (Debtor). If you are not Eric H. Beeders please hang up or disconnect. If you are Eric H. Beeders please continue to listen to this message. By continuing to listen to this message you acknowledge that you are Eric H. Beeders. Please return this call to Roy Dillard from Gulf Coast Collection Bureau. Please call 877-827-4820 and ask for file number G31852.”

The lower court granted Gulf Coast’s motion for directed verdict following a bench trial. On appeal, the Debtor argued that the telephone message failed to comply with the FDCPA and FCCPA “because it did not adequately satisfy the disclosure requirement in that it did not identify the nature of the calling company’s business, the fact that the caller was a debt collector, and the fact that the call was being made with respect to the collection of a debt.”

The Eleventh Circuit affirmed, reasoning that “taking this message as a whole, even an unsophisticated consumer would not be misled as to the purpose of this call, as the message identified the name of the caller, which includes the term ‘Collection Bureau,’ and specifically referenced a personal file number.” Accordingly, the Court found “no reversible error in the district court’s conclusion that Gulf Coast satisfied the disclosure requirements of the FDCPA.”

The Court also noted that, having found against the Debtor on his FDCPA claim, the Court “need not address Debtor’s arguments that the failure to comply with these requirements constitute a per se violation of the FCCPA.” Therefore, the Court also affirmed the lower court’s grant of summary judgment as to Debtor’s FCCPA claim.

Foreclosure case goes to Supreme Court of Florida

http://pdfserver.amlaw.com/dbr/Nieves-appeal.pdf

In Nieves' case, the 4th District Court of Appeal ruled Feb. 3 that BNY Mellon legally avoided a claim that it committed a fraud on the court by voluntarily dismissing a foreclosure action against Pino, a Lake Worth, Fla., resident. The claim was dismissed after Pino's counsel scheduled depositions and asked for an evidentiary hearing to determine whether BNY Mellon used a fraudulent mortgage assignment.


On appeal is an 8-1 en banc decision saying courts have no authority to rescind voluntary dismissals and that no harm was done. Judge Mark Polen disagreed, saying the allegation of a systemic fraud was the very thing the Supreme Court addressed in its 2010 rule change giving courts greater latitude in sanctioning plaintiffs who make false allegations.

http://www.law.com/jsp/law/sfb/article.jsp?id=1202501156555&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110715&kw=Newcomer%20to%20Argue%20High-Stakes%20Foreclosure%20Case%20Before%20Fla.%20Supreme%20Court