In This Update

In response to the COVID-19 state of emergency, the Receivables Management Association International (RMAI) distributes weekly Member Alerts with guidance for our members. RMAI maintains a COVID-19 resource page on the RMAI website that is accessible without a member password. Included on this webpage are COVID-19-related member alerts, webinars, regulatory and legislative resources, Executive Orders, and emergency court rules.

We update the site daily, so please check back often for updates. New this week: May 13, 2020: RMAI Webinar – Returning to the Workplace in a Covid-19 Environment

The RMAI staff continues to work from home and is available by phone and email.

It has been an extremely busy month at the Federal level, with RMAI activities focusing in two areas.  First, Comments for the CFPB proposed Supplemental Rule on Time-Barred Debt Disclosures are due on June 5th.  Committee members, RMAI’s Legal Counsel, Maurice Wutscher, and staff have been working on a comprehensive response.  Thank you for those of you who responded to the survey, as your responses have informed and shaped many of our responses.  When completed, all members will receive a copy of the Comments.

On Capitol Hill, RMAI has been actively working on several pieces of legislation affecting the industry.  Earlier this week, we received the 1800+ page proposed HEROS Act.  This all-encompassing proposal impacts a wide range of industries and levels of government. The sections most relevant to the collections industry are Sections 20103, 20104, 80012, 110401-404, 11501, and 11601-603.

We have been working in the background laying the groundwork for our concerns.  Our Federal Council, K&L Gates, has and continues to guide us as we develop strategy to advocate our positions.  It is anticipated that the next COVID-19 legislative package (known as Phase IV) will be passed sometime in June.

RMAI is actively monitoring over 300 bills that may impact the receivables industry in both positive and negative ways. Here are a few noteworthy bills that have been introduced:

California SB 908 – This bill would require debt collectors (collection agencies, debt buyers and collection law firms) to be licensed by the Department of Business Oversight (DBO) in California. The bill generally contains requirements similar to other state licensing requirements. Licenses would be required as of January 1, 2022. [RMAI has met with the sponsor’s office, DBO, and committee staff several times over the past three months to advocate for changes. The bill was amended on April 15th and approximately 60 percent of RMAI’s redlines were incorporated, including among other things, eliminating consumer access to bonds; allowing a family of companies to share a license and examination; and delaying the effective date until January 1, 2022. Some issues are still being negotiated, including placing a cap on annual fees and protection of confidential business records.]

Maryland HB 365 [Chapter 183 of the Laws of 2020] – This law changes the wage garnishment exemption from 30x federal minimum wage to 30x state minimum wage. [An industry coalition fought adoption of this bill for years as the sponsor was seeking to adopt a 50x state minimum wage threshold. Industry and the sponsor compromised by keeping the multiplier the same but switching from federal to state minimum wage.]

Massachusetts SB 578/HB 919 – This bill among other things would: (1) reduce the statute of limitations in an action for the collection of a consumer debt from six to four years to be measured from the earlier of the date of charge-off, placement for collection, or 180 days after the last regular payment; (2) prohibit payments made prior to the limitations period expiring from tolling the statute; (3) prohibit any attempt to collect a consumer debt once the statute of limitations has expired but would allow a debt collector to accept an unsolicited voluntary consumer payment on a debt; (4) extinguish judgments after five years unless the creditor takes action to enforce the judgment; and (5) reduce the percentage that is subject to wage garnishment. [RMAI has retained a lobbyist to oppose the bill in its current form. RMAI participated in a stakeholder roundtable requested by the committee chair in January 2020. Working with a receivables industry coalition, RMAI has exchanged several redlines with consumer advocates. While we have made progress, more work is needed. The bill was reported out of its first committee with amendments last week (which are not in print yet).]

New Jersey SB 2330 – This bill adopts various provisions related to credit reporting and health care debt for those impacted by COVID-19.

New Jersey SB 2423 – This bill would create a $340,000 homestead exemption; protects $15,000 in value in personal property, inclusive of $5,000 within a bank account; and increases the threshold in which an income can be garnished at a rate higher than 10 percent from 250 percent to 400 percent of the federal poverty rate.

New York City Bill 1912 – This bill would prohibit the sheriff and the marshals from taking action with respect to the taking and restitution of property or the execution of money judgments unless the party against whom such taking and restitution or such execution is sought has been provided a reasonable opportunity to show the court having jurisdiction over the matter that such party suffered a substantial loss of income because of COVID-19 and such court has found that such party has not suffered such a loss or has effectively waived such opportunity.

If you are interested in obtaining a copy of the RMAI state tracking list, please contact David Reid at dreid@rmaintl.org.

Consumer Portals Come Under Fire When Collecting Out of Statute Debt

One of the most alarming rulings of the year, from a compliance perspective, is the matter of Odneal v. Midwest Recovery Systems, LLC, CAUSE NO. 2:19-CV-431-PPS, filed on April 24, 2020, before the United States District Court for the Northern District of Indiana. In this case the controversy arose over the question of whether the defendant’s consumer portal was a communication in connection with the collection of a debt and if so whether the defendant’s portal should have warned the plaintiff the statute of limitations had expired on a debt he allegedly owed.

The plaintiff claimed the defendant’s inclusion of the debt on its consumer portal, the inclusion of the statement on its consumer portal that it [the portal] was a communication from a debt collector and the defendant’s failure to disclose the time barred nature of the debt on its consumer portal, amounted to a deceptive and unfair practice. In response to the defendant’s motion to dismiss, the Court held in favor of the plaintiff stating the plaintiff had properly stated a claim that the communication was in connection with the collection of a debt and was deceptive.

So, what does this mean? Members who collect out of statute debt, either directly or indirectly through a third-party collection agency or law firm, should immediately review the terms and disclosures on their consumer portals with independent legal counsel. Although this ruling was in response to a motion to dismiss, is limited to the jurisdiction of this Indiana court and is not a decision on the merits of the case; it should none the less be received as a shot across the bow by the consumer attorneys, warning the industry web sites will be scrutinized as communications in connection with the collection of a debt and must therefore comply with the requirements for communications under the Fair Debt Collection Practices Act and similar state consumer protection laws.

Eleventh Circuit Holds TCPA Consent Cannot Be Unilaterally Revoked

Medley v. Dish Network, LLC, No. 18-13841, 2020 U.S. App. LEXIS 14052 (11th Cir. May 1, 2020)

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed summary judgment in favor of a satellite television provider on a consumer’s claims that it violated the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., by contacting the plaintiff consumer via an automated dialing system after she revoked her consent to receive such calls.

The consumer had entered a 24-month contract with a satellite television provider for services (the “agreement”). The agreement called for monthly payments and an option to participate in the  “Pause Program” which allowed customers to temporarily suspend their satellite services and the charges for those services, for up to nine months during the term of the agreement for a monthly fee that would also extend the term of the 24-month commitment by the amount of time the service was suspended. Under the agreement, the consumer expressly authorized the satellite provider to contact her regarding the “[her] account or to recover any unpaid portion of [her] obligation to [the satellite provider], through an automated or predictive dialing system or prerecorded messaging system.”

Eleven months into the contract, the consumer entered the Pause Program, and approximately two months later, filed a Chapter 7 bankruptcy petition.

Over a month after the consumer’s debts were discharged, the satellite provider sent an email directly to the consumer to collect the Pause Program fees. In response, her counsel sent the satellite provider three faxes instructing that they represented the consumer with regard to her debts, including any debt owed under the agreement, and also expressly stating that “[t]o the extent any such prior express consent existed, if any, to call the above person using an [automatic telephone dialing system] (ATDS), such consent is hereby forever revoked consistent with the Florida and federal law.”

Subsequently, the satellite provider sent four more emails directly to the consumer seeking payment of the monthly Pause charges and placed six automated calls to the consumer’s cell phone after receiving the first fax. In response, the consumer’s attorneys twice re-sent the same facsimile.

The consumer filed suit in federal court alleging violations of the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq., for purportedly continuing to contact her directly knowing she was represented by counsel about a debt it knew had been discharged in bankruptcy, and the TCPA by using an ATDS or prerecorded voice to call the consumer on her cell phone after the consumer revoked her consent to receive such calls.

The satellite provider moved for summary judgment, which was granted in its favor on all claims.

On appeal, the Appellate Court first addressed the FCCPA claims and agreed with the consumer that the satellite provider attempted to collect debt it had no legal right to collect in violation of subsection § 559.72(9) because the debt had been discharged in bankruptcy, and directly contacted the consumer after having received notice that she was represented by counsel in violation of § 559.72(18).

Accordingly, the entry of summary judgment in the satellite provider’s favor on the consumer’s FCCPA claims was reversed and remanded to the trial court to determine whether the satellite provider possessed actual knowledge that the Pause Program debts were invalid and that the consumer was represented by counsel with regard to the debt, as required to establish a claim under the FCCPA.

Next reviewing the consumer’s TCPA claims, the Eleventh Circuit noted that the parties did not dispute that the consumer expressly consented to be contacted by a prerecorded voice or ATDS in the agreement, and unilaterally attempted to revoke that consent via the faxes her attorneys sent to the satellite provider, yet the satellite provider continued to contact her. Thus, the issue before the Court was whether the TCPA allows unilateral revocation of consent given in a bargained-for contract.

In granting summary judgment in the satellite provider’s favor, the trial court followed the Second Circuit’s reasoning in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017).  As in Reyes, the consumer expressly consented to receive automated telephone calls to collect a debt as part of a bilateral agreement and expressly revoked consent to receive such calls. Acknowledging that the TCPA is silent as to consent and “evidences no intent to deviate from common law rules defining consent,” it applied common law contract rules to conclude that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent,” and affirmed summary judgment for the defendant.

The Eleventh Circuit agreed with the Second Circuit’s reasoning, noting prior interpretations of contract law, stating that “an ‘agreement is a manifestation of mutual assent on the part of two or more persons,’ [and thus] it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.” Kuhne v. Fla. Dep’t of Corrs., 745 F.3d 1091, 1096 (11th Cir. 2014) (internal citations omitted).

The Eleventh Circuit was similarly unpersuaded by the consumer’s argument that unilateral revocation of consent given in a legally binding agreement is permissible because it comports with the consumer-protection purposes of the TCPA, agreeing with the Second Circuit that “[i]t was well-established at the time that Congress drafted the TCPA that consent becomes irrevocable when it is integrated into a binding contract, and we find no indication in the statute’s text that Congress intended to deviate from this common-law principle in its use of the word ‘consent.’”

Accordingly, summary judgment in the satellite provider’s favor on the consumer’s TCPA claim was affirmed.

Eleventh Circuit Dismisses Wrongful Foreclosure Appeal for Lack of Spokeo Standing

Thankkar v. DCT Sys. Grp., LLC (In re Bay Circle Props.), 955 F.3d 874 (11th Cir. 2020)

The U.S. Court of Appeals for the Eleventh Circuit recently dismissed an appeal for lack of Article III standing because the appellant did not allege the particularized injury necessary to confer standing and the co-appellant with standing settled and dismissed its appeal.

The appellant and a corporate borrower had loans with a bank.  After the borrower filed for bankruptcy, the appellant and the borrower entered into an agreement with the bank regarding the debt owed on the loans.

The agreement secured the loans with two properties. The agreement included a deed-in-lieu of foreclosure remedy which gave the bank the option upon default to record one or more of the deeds in lieu of foreclosure to transfer title of the two properties. The agreement also allowed the bank to foreclose the loans after a default.

The bank sold its interest in the agreement to a company. The borrower defaulted on the loans. The company then recorded both deeds and foreclosed on both loans. The borrower tried to tender the amounts owed before the foreclosure sale, but the company did not respond and sold the properties.

The appellant sued the company in state court and added the borrower as a party in an amended complaint. The appellant alleged that the borrower owned the properties, but claimed that he was affiliated with the borrower and that he had a beneficial interest in the two foreclosed properties. The amended complaint alleged that the company wrongly foreclosed on two properties causing the appellant to lose the collateral’s value exceeding the debt balance, and to suffer mental anguish.

The company removed the case to bankruptcy court and promptly moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).  The bankruptcy court granted the company’s motion and entered judgment in favor of the company.  The district court subsequently affirmed the bankruptcy court’s judgment and this appeal followed.

Before the Eleventh Circuit issued its opinion, the borrower and the company settled.  The Eleventh Circuit granted the borrower’s motion to dismiss its appeal, leaving the appellant to challenge the foreclosures.

The Eleventh Circuit began its analysis by examining whether the appellant had standing. As you may recall, Article III standing “represents a jurisdictional requirement which remains open to review at all stages of the litigation.” Standing requires “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Further, a particularized injury “affect[s] the plaintiff in a personal and individual way.”

A plaintiff must allege facts sufficient to demonstrate every element of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Mere “conclusions,” or “naked assertions devoid of further factual enhancement” will not confer standing. Instead, the plaintiff must allege sufficient facts so that the right to relief is not speculative.

The Eleventh Circuit noted that when the only “party with standing in the lower court is absent as an appellant,” a party that lacks standing many not “piggyback on another party’s standing.”  Instead, the remaining party must demonstrate its own standing.

Here, the borrower had standing as the alleged owner of the two properties, but “its absence as an appellant requires that we examine our jurisdiction to entertain this appeal.” The appellant alleged that the foreclosure on the two properties somehow caused “him to lose the collateral’s value exceeding the debt balance, and to suffer mental anguish.”

However, he also alleged that the borrower owned the properties and alleged no facts to demonstrate any “beneficial interest” that he may have had in the two properties. Without any specifically pleaded facts, the Eleventh Circuit could not say that any claimed loss the appellant suffered “is more than speculative.”  His “naked assertions devoid of further factual enhancement” failed to allege any actual injury that was personal to appellant.

The appellant also argued that his claimed mental anguish conferred standing because “[i]n a wrongful foreclosure action, an injured party may seek damages for mental anguish in addition to cancellation of the foreclosure,” quoting Blanton v. Duru, 543 S.E.2d 448, 452 (Ga. Ct. App. 2000). The Eleventh Circuit rejected this argument because unlike the foreclosed party in Blanton, the appellant did not allege that he owned the foreclosed properties. Rather, the amended complaint alleged that the borrower owned the properties. As such, Blanton does not help the appellant obtain standing because it “did not hold that a nonowner may seek damages for mental anguish.”

In addition, the appellant argued that he had standing because: “1) he personally guaranteed the loans at issue; and (2) the property could satisfy or decrease his personal liability stemming from judgments that two creditors have against him individually.”  The Eleventh Circuit had little trouble rejecting these arguments because the appellant’s amended complaint did not make these allegations.  It is not apparent, the Court said, how the personal guarantee might harm the appellant when he is not a debtor in the bankruptcy and “the foreclosures satisfied the Settlement Agreement debt.”

In addition to Article III standing, the Eleventh Circuit has “adopted the person aggrieved doctrine as our standard for determining whether a party can appeal a bankruptcy court’s order.” In re Ernie Haire Ford, Inc., 764 F.3d 1321, 1325 (11th Cir. 2014). This standard is even more restrictive than Article III standing: “It ‘limits the right to appeal a bankruptcy court order to those parties having a direct and substantial interest in the question being appealed.’”  Thus, to appeal a bankruptcy order, a party must be “directly, adversely, and pecuniarily” affected by the order meaning it must “diminish his property, increases his burden, or impair his rights.”

Based on its aggrieved doctrine, the Eleventh Circuit found the appellant “cannot clear the higher hurdle of showing that he is a person aggrieved.” The appellant did not allege a direct and substantial interest in the question appealed or allege that the dismissal order diminished his property, increased his burdens, or impaired his rights.

Thus, the Eleventh Circuit dismissed the appeal for lack of Article III standing.

Fifth Circuit Reverses Sanctions Against Consumer’s Counsel for Failure to Promptly Settle

Tejero v. Portfolio Recovery Assocs., L.L.C., 955 F.3d 453 (5th Cir. 2020)

The U.S. Court of Appeals for the Fifth Circuit recently reversed a trial court’s order sanctioning a consumer’s counsel for failure to promptly settle a lawsuit, but affirmed the trial court’s order denying a motion to recuse because the trial court was not biased against the consumer.

In January 2016, a consumer disputed a debt by sending a facsimile to a debt collector. Despite this alleged fax transmission, the debt collector continued to report the debt to a consumer reporting agency without noting that the consumer disputed the debt.

In June 2016, the consumer sued the debt collector for allegedly violating the federal Fair Debt Collection Practices Act (FDCPA) and the Texas Debt Collection Act (TDCA). The consumer alleged that the debt collector violated these statutes by communicating “credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” 15 U.S.C. § 1692e(8); Tex. Fin. Code §§ 392.202(a), 392.301(a)(3).

In a September 2016 order, the trial court required the parties to exchange settlement offers by Oct. 19, 2016. In compliance with this order, the debt collector offered to settle for $1,101, plus reasonable attorneys’ fees and costs. The consumer’s lawyer never responded to the debt collector’s offer and did not issue a written settlement demand. Subsequently at his deposition, the consumer testified that the offer would “make him whole and conclude the case.”

The parties filed cross-motions for summary judgment.  The trial court granted the debt collector’s motion under the TDCA because the borrower had no competent evidence to establish the required actual damage element of this claim, but denied the parties’ cross-motions on the FDCPA claim finding that a triable issue of material fact existed over whether the consumer’s January 2016 fax “actually disputed the debt.”

After this, the parties settled the case. The debt collector agreed to pay the consumer $1,000 and to forgive the debt.  The parties agreed to allow the trial court to resolve the dispute over attorneys’ fees and costs.

The consumer moved for attorneys’ fees and costs totaling. $14,731.80.  The debt collector moved to sanction the consumer’s lawyers (the “Attorney-Appellants”) under 28 U.S.C. § 1927 and 15 U.S.C. § 1692k(a)(3), and sought its own attorneys’ fees and costs totaling $13,950.38.

Before ruling, the trial court wrote to the disciplinary committee for the U.S. District Court for the Western District of Texas accusing the Attorney-Appellants of participating in “a scheme to force settlements from debt collectors by abusing the FDCPA.” In support of this alleged ethical violation, the trial court provided a list of FDCPA cases in which the consumer’s attorneys had participated.

In April 2018, the trial court ruled on the cross motions for fees and costs. The trial court denied the consumer’s motion for attorneys’ fees and costs. Moreover, the trial court sanctioned the Attorney-Appellants under 15 U.S.C. § 1692k(a)(3) and Federal Rule of Civil Procedure 11(c), and ordered them to pay the debt collector’s attorneys’ fees and costs.

In so ruling the trial court found that the Attorney-Appellants “acted in bad faith when they: (1) failed to comply with the September 2016 settlement-offer order; (2) continued to litigate the case even after receiving an offer that would make [the consumer] whole; and (3) drafted the January 2016 debt letter in a manner that would cause the debt collector not to realize that the debt was disputed, so that counsel could engage in a “scheme” to “force settlements from debt collectors by abusing the FDCPA.”

After the sanctions order, the consumer filed a motion to recuse the trial court judge under 28 U.S.C. §§ 144 and 455, which was denied because there was no evidence that the trial court judge possessed any extrajudicial knowledge and the “rulings did not show sufficient antagonism for a reasonable person to harbor doubts about the judge’s impartiality.” The consumer and his lawyers appealed.

The Fifth Circuit began by noting that a trial court may not award attorneys’ fees under Rule 11 sua sponte.  Ordinarily, this alone ordinarily would warrant reversal.  However, the consumer and his attorneys waived this argument, thus requiring the Fifth Circuit to examine the merits of the trial court’s sanctions orders.

Rule 11 requires that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name.” FED. R. CIV. P. 11(a). The Rule 11(a) required signature “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the filing is not sanctionable under Rule 11(b). Thus, Rule 11’s plain text makes it clear that it only applies “where a person files a paper.”  Rule 11 does not apply to “abusive tactics in litigation in respects other than the signing of papers.” This is why a trial court deciding a Rule 11 motion evaluates an attorney’s conduct when they file “a pleading, motion, or other paper.”

The trial court provided three justifications for sanctioning the Attorney-Appellants under Rule 11: (1) they did not “make or respond to a settlement offer,” contrary to the scheduling order; (2) they continued litigating after the consumer testified at his deposition that the debt collector’s offer would have made him whole, and (3) the January 2016 letter disputing the debt “was part of a fraudulent scheme to abuse the FDCPA.”

The Fifth Circuit found all three reasons meritless because none of them were “tied to a filing,” as required.

Initially, the failure to discuss settlement concerns an attorney’s litigation tactics, not “a filing subject to Rule 11.” The Fifth Circuit emphasized that it and its sister circuits “have held that courts do not have the power to compel parties to make settlement offers, and that the failure to make an offer is not sanctionable.” Dawson v. United States, 68 F.3d 886, 897 (5th Cir. 1995) (collecting cases from other circuits).

The Fifth Circuit observed that contrary to its holding in Dawson, it has become a common practice in the “Western District of Texas for judges to require parties to exchange settlement offers.” The Fifth Circuit addressed this by reiterating that “if a party is forced to make a settlement offer because of the threat of sanctions, and the offer is accepted, a settlement has been achieved through coercion.”

The Fifth Circuit made it clear that it will not tolerate this result, holding that the trial court erred when it sanctioned the Attorney-Appellants because the consumer did not engage in settlement discussions.  The trial court “lacked the power” to order the consumer “to make a settlement offer.”

The Fifth Circuit next reviewed the trial court’s justification for sanctioning the Attorney-Appellants for continuing to litigate after receiving a settlement offer. The Fifth Circuit concluded that “the decision to reject a settlement offer is not a court filing subject to Rule 11(b). Thus, this rationale did not support sanctioning the Attorney-Appellants.

The Fifth Circuit also examined the trial court’s final reason for sanctioning the Attorney-Appellants under Rule 11 that the debt dispute letter was intentionally vague and sent in bad faith to create FDCPA liability. The letter itself was “not a filing or other paper subject to Rule 11,” but the consumer attached it to his complaint bringing it within the scope of conduct that Rule 11 was intended to govern.

Nevertheless, the Fifth Circuit found that there is no evidence that the consumer acted in “bad faith” when he filed his complaint.  As such, it was reversible error for the trial court to “ignore the language of the letter and instead infer subjective bad faith based on its view of the attorneys’ intent.”

Additionally, Rule 11 does not include the phrase “bad faith” and the trial court did not specify which part of Rule 11 the Attorney-Appellants supposedly violated.  The trial court might have considered that the letter did not did not “have evidentiary support” under Rule 11(b)(3), but it found that a material fact dispute “exist[ed] on whether Plaintiff actually disputed the Debt” so the “lack of evidentiary foundation cannot be the problem here.” Moreover, a “claim that survives summary judgment” is not frivolous. See FED. R. CIV. P. 11(b)(2).  Thus, the Fifth Circuit reversed the sanction award against the Attorney-Appellants.

The Fifth Circuit next examined the trial court’s fee award to the debt collector under 15 U.S.C. § 1692k(a)(3), which allows a court to “award to the defendant attorney’s fees” “[o]n a finding . . . that an action under this section was brought in bad faith and for the purpose of harassment.” As the Fifth Circuit already rejected the trial court’s bad faith finding, it also reversed this award.

The Fifth Circuit reversed this fee award because the trial court improperly ordered the Attorney-Appellants to pay it when section “(a)(3) does not stretch that far.”  Courts must strictly construe statutes awarding attorneys’ fees given the long-standing American Rule “against awarding costs and fees to the prevailing party.” Specifically, the Fifth Circuit held, courts must read statutes that depart from the American Rule “with a presumption favoring the retention of long established and familiar legal principles.”  With these principles in mind, “when a statute awards fees to one party, but does not identify from whom they may be collected,” the Fifth Circuit declined to allow “recovery from the other party’s counsel.”

Section 1692k(a)(3) permits a court to “award to the defendant attorney’s fees,” but it “is silent as to whether a plaintiff’s attorney may be ordered to pay them.” This section does not explicitly authorize the court to sanction lawyers and require them to pay a fee award in derogation of the common law prohibition against this practice.

Although the Fifth Circuit reversed the sanction award against the Attorney-Appellants, it was not ready to order the debt collector to pay the consumer’s fees and costs.  Such an order would require the consumer to prove that his action to enforce FDCPA liability was successful. 15 U.S.C. § 1692k(a)(3).  The Fifth Circuit has not yet “decided whether a private settlement renders the action “successful” under § 1692k(a)(3)” and the trial court did not consider this issue.  Thus, the Fifth Circuit remanded this issue to the trial court to decide whether the consumer may recover attorneys’ fees under the FDCPA.

Finally, the Fifth Circuit analyzed the consumer’s claim that the trial court erroneously denied the recusal motion under 28 U.S.C. §§ 144 and 455. Recusal is required under these sections when the court “has a personal bias” against a party, 28 U.S.C. §§ 144, 455(b)(1), if the court’s “impartiality might reasonably be questioned,” id. § 455(a), or if the court has “personal knowledge of disputed evidentiary facts concerning the proceeding,” id. § 455(b)(1). The key here is that the bias must be against a “party,” not their counsel. Bias against a non-party attorney alone does not require disqualification.

Another ground for disqualification would be if the court’s views are “extrajudicial.” A court’s views are not extrajudicial when the court formed its opinion “on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings.” Here the trial court’s supposed bias was not derived from extrajudicial knowledge because the court presided over this case and three of the other cases referenced in the sanctions order.

Further, the other cases cited in the sanctions order came from a record created by the ECF system for the Western District of Texas which listed other cases involving the Attorney-Appellants. Given that the Attorney-Appellants asked the trial court in their fee petition to look at these cases to justify their experience and claimed billing rate they “have only themselves to blame,” and if they do not like what the trial court found it does not give them grounds to claim bias.

Finally, when a court applies section 455(a), a court must determine “whether a reasonable and objective person, knowing all of the facts, would harbor doubts concerning the judge’s impartiality.”  Here the trial court did not have any extrajudicial knowledge about the consumer or his counsel so the consumer had the burden to demonstrate that the trial court “displayed a deep-seated favoritism or antagonism that would make fair judgment impossible.”

The Fifth Circuit found that trial court’s anger was directed at the Attorney-Appellants based on their conduct, not at the consumer. This ire did not rise to the level of “a continuing and personal nature,” sufficient to require recusal.

The Fifth Circuit also found that there was no evidence that the trial court harbored “a deep-seated antagonism” against the consumer “that would make fair judgment impossible.” Rather, the trial court was concerned that the Attorney-Appellants did not properly inform the consumer about the settlement offer.

Thus, the Fifth Circuit affirmed the trial court’s denial of the motion to recuse and reversed the trial court order sanctioning the Attorney-Appellants, remanding the matter for further proceedings consistent with its opinion.

7th Circuit Holds ‘Present Right to Repossession’ Determined by State Law

Richards v. PAR, Inc., 954 F.3d 965 (7th Cir. 2020)

The U.S. Court of Appeals for the Seventh Circuit recently held that in the absence of an FDCPA-specific rule regarding “present right to possession,” the Court must look to state law to determine whether a repossessor has a present right to possess the property at the time it was seized.

Here, the Court held that under Indiana law, a repossessor has a present right to take possession of collateral without judicial process only if he proceeds without a breach of the peace.

A consumer obtained a loan from a bank to finance the purchase of a sport utility vehicle. The loan agreement provided the bank with a security interest in the SUV and the right to possession if the consumer defaulted. The loan also provided any repossession would proceed without a beach of the peace.

The consumer defaulted, and the bank hired a repossession firm who subcontracted a towing company to repossess the SUV.

The towing company arrived to repossess the SUV and was met by the consumer who protested, saying she would not voluntarily surrender it, and ordered them to leave the property. The towing company then called the police who handcuffed the consumer while the vehicle was towed away, releasing her once the SUV was gone.

The consumer sued the repossession firm and towing company for violations of the federal Fair Debt Collection Practices Act (FDCPA).  Section 1692f(6)(A) of the FDCPA prohibits debt collectors from “[t]aking … any nonjudicial action to effect dispossession or disablement of property if there is no present right to possession of the property claimed as collateral through an enforceable security interest.”

The trial court entered summary judgment for the repossession firm and towing company, construing the claim as an impermissible attempt to use the FDCPA to enforce a violation of state law. The consumer appealed to the Seventh Circuit.

On appeal, the consumer admitted she defaulted on the loan and that the bank had a valid and enforceable security interest, but argued that the towing company lacked a present right to possess the SUV because Indiana law provides that a secured party may take possession of collateral without judicial process only “if it proceeds without breach of the peace.” If a breach of the peace occurs, the repossessor “must desist and pursue his remedy in court.” Allen v. First Nat’l Bank of Monterey, 845 N.E.2d 1082, 1086 (Ind. Ct. App. 2006).

The repossession firm and towing company countered that the requirement for “present right to possession” means only that the repossessor must have an enforceable security interest in the property claimed as collateral.

The Seventh Circuit noted the FDCPA does not define the phrase “present right to possession.” Repossession rights are governed by the relevant state’s property and contract law, and in the absence of an FDCPA-specific rule, the court must look to state law to determine whether a repossessor had a present right to possess the property at the time it was seized.

In Indiana, a repossessor has a present right to take possession of collateral without judicial process only if he proceeds without a breach of the peace.

In making its ruling, the Seventh Circuit relied on two prior rulings. First, in Seeger v. AFNI, Inc., 548 F.3d 1107, 1111 (7th Cir. 2008), the Court could not determine whether the methods used by a cell-phone company to collect debts were “permitted by law” under the FDCPA without reference to Wisconsin law. Second, in Suesz v. Med-1 Sols., Inc., 757 F.3d 636 (7th Cir. 2014) (en banc), the Court looked to Indiana law to identify the “judicial district or similar legal entity” under the FDCPA for venue purposes.

The Seventh Circuit distinguished Seeger and Suesz from cases attempting to use state law to define “unfair or unconscionable” debt collection methods under the FDCPA, noting that “vague” language prohibiting unfair or unconscionable debt-collection practices could not be read to “transform the FDCPA into an enforcement mechanism for matters governed by state law.”

The Court held the towing company was pursuing a self-help remedy by seizing the SUV, and a reasonable jury could conclude that a breach of the peace occurred during the repossession attempt. At that point, the towing company no longer had a present right to possession pursuant to Indiana code, but its employees took the consumer’s SUV anyway.

Accordingly, the Seventh Circuit reversed the ruling of the trial court and remanded.

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Zach Schwartz – Debt Recovery Solutions, LLC
Mark Stelk – General Collection Co.
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Thank you to our May 2019 – May 13, 2020 Legislative Fund Contributors!

Diamond $25,000

Financial Recovery Associates, Inc.

Portfolio Recovery Associates, LLC

Resurgent Holdings, LLC

Titanium $15,000

Platinum $10,000

CKS Financial

Crown Asset Management, LLC

Unifund CCR, LLC

Velocity Portfolio Group, Inc.

Gold $7,500

Second Round, LP

Silver $5,000

Digital Recognition Network

Diverse Funding Associates, LLC

First Financial Portfolio Service, LLC

Garnet Capital Advisors, LLC

Plaza Services, LLC

Bronze $2,500

Reynolds Sims & Associates, P.C.

Glass Mountain Capital, LLC

International Debt Buying Consultants, LLC

Jefferson Capital Systems, LLC

National Loan Exchange, Inc.

RAzOR Capital, LLC

Security Credit Services, LLC

The Bureaus, Inc.

Brass $1,000

Andreu, Palma, Lavin & Solis, PLLC

Atlas Acquisitions

Balbec Capital, LP

C & E Aquisition Group

Central Portfolio Control, Inc.

Equifax, Inc.

Geist Holdings, Inc.

Investment Retrievers, Inc.

Jormandy, LLC

Kino Financial Co., LLCF

Ontario Systems, LLC

Stenger & Stenger P.C.

The Cadle Company

The Law Offices of Ronald S. Canter, LLC

Tobin & Marohn

TrueAccord

U.S. Equities Corp.

United Holding Group

Verifacts, Inc.

Vertican Technologies, Inc

Other

Accelerated Data Systems

Acctcorp International, Inc.

Actuate Law, LLC

AGORA Data, Inc.

Aldridge Pite Haan, LLP

Alliance Credit Services, Inc.

Arko Consulting LLC

Attunely Inc.

Autovest, LLC

Ballard Spahr LLP

Butler & Associates, P.A.

Capio

CBE Group, Inc.

CMS Services

Complete Credit Solutions

Comtronic Systems, LLC

Conquest Receivables

Convergence Acquisitions, LLC

Converging Capital, LLC

Convoke, Inc.

Credit Control, LLC

Credit Management Corporation

D & A Services, LLC

David Reid

DebtTrader

Delev & Associates, LLC

Delta Outsource Group, Inc.

Diverse Funding Associates, LLC

DNF Associates LLC

Dynamic Recovery Solutions

Federal Pacific Credit Company

FLOCK Specialty Finance

FMS, Inc.

Fort Crook Financial Co.

Full Circle Financial Services, LLC

Genesis Recovery Services

Halsted Financial Services, LLC

Harvest Strategy Group, Inc.

Hinshaw & Culbertson

Hudson Cook, LLP

Hunt & Henriques

Jan Stieger

Keith D. Weiner & Associates Co., LPA

Kirschenbaum & Phillips, P.C.

Law Office of James R. Vaughan, P.C.

Law Offices of Daniel C. Consuegra, P.L.

Law Offices of Steven Cohen, LLC

Lockhart, Morris & Montgomery, Inc.

London & London

Maurice Wutscher LLP

Mercantile Adjustment Bureau, LLC

Metronome Financial LLC

Midwest Fidelity Services, LLC

Monarch Recovery Management, Inc.

MRS BPO, LLC

Mullooly, Jeffrey, Rooney & Flynn, LP

National Check Resolution, Inc.

National Recovery Associates

National Recovery Solutions, LLC

NCB Management Services, Inc.

NDS, LLC

Nuvei

Palinode, LLC

PCI Group, Inc.

Pharus Funding, LLC

POM Recoveries, Inc.

Portfolio Group Investors, LLC

Poser Investments, Inc.

Premier Forty Financial, LLC

RAS LaVrar LLC

Resource Management Services, Inc

RIP Medical Debt

Riveride Sunnyhood Acquisitions, Inc.

Rocky Mountain Capital Management, LLC

Runci Group

Sandia Resolution Company, LLC

Simmonds & Narita LLP

Solutions by Text

Stephen L. Bruce & Associates

Superlative RM

Tag Process Service, Inc.

Troutman Sanders LLP

Troy Capital, LLC

Universal Fidelity LP

USI Solutions, Inc.

Vargo & Janson, P.C.

Venable LLP

Viking Client Services, Inc.

VoApps

ZenResolve