UDAAP Council Weekly UDAAP Standards Report - 3/25/2015

25 March 2015 Consumer Class Defense Counsel Blog

Every week, courts around the United States issue decisions addressing aspects of civil UDAAP claims. In an effort to illuminate the UDAAP standards, below is a sampling of some of this week’s UDAAP decisions on the meaning of unfair, deceptive, and abusive.

Unfair or Deceptive

Borrowers’ allegations that a mortgage lender delayed and obstructed borrowers from attempting to modify their loan under the Home Affordable Modification Program (HAMP) through misrepresentations were sufficient to state a claim for unfair and deceptive conduct under Massachusetts’ UDAP statute. Beck v. Bank of New York Mellon Corp., United States District Court for the District of Massachusetts.

A debt collector’s communication to debtors was not unfair and deceptive in violation of the Fair Debt Collection Practices Act (FDCPA), where the debt collector sent communications to the debtors after notification that the debtors were represented by counsel. The communications were in response to the debtors’ notification under Section 1692c that they refused to pay the debt, and Section 1692c specifically allows a debt collector to respond in that situation. Moreover, the communications were not unfair or deceptive in any other way and also were sent to the debtors’ counsel of record at the same time they were sent to the debtors. Castillo v. Zucker, Goldberg & Ackerman, United States District Court for the District of New Jersey.

Deceptive

A debt collector’s alleged failure to communicate to a credit reporting agency that a debt was disputed did not violate the FDCPA, given that there is no affirmative duty on the part of a debt collector to report the disputed nature of a debt to a credit reporting agency. The debt collector’s failure to include the term “debt collector” in communications with the debtor after its first letter also did not violate the FDCPA, as the debtor already had been made aware of the debt collector’s status. Danehy v. Jaffe & Asher, United States District Court for the Eastern District of North Carolina.

A law firm acting as a debt collector did not mislead the debtor regarding the involvement of an attorney in the debt collection process. Communications from the debt collector contained disclaimers stating that no lawyers had evaluated the case or been engaged to file a lawsuit, eliminating any potential ambiguity. Spurgeon v. Frederick J. Hanna & Associates, P.C., United States District Court for the District of Nebraska.

A debt collector’s failure to notify a debtor regarding the potential tax consequences of debt-reduction offers did not constitute deceptive practices under the FDCPA, given that the FDCPA does not require disclosure of potential adverse tax consequences and the debt collector’s communications were not otherwise misleading. Rigerman v. Forster & Garbus LLP, United States District Court for the Eastern District of New York.

Note that this Weekly UDAAP Standards Report serves to highlight only some of the many weekly developments in the law around these standards.

Please feel free to contact me for more information or to discuss these cases or any other UDAAP developments.

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