UDAAP Council Weekly UDAAP Standards Report – 11/5/2014

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. 

Deceptive

• A borrower could not prove its claims under the Texas Debt Collection Act (TDCA) based on allegations of procedural defects in a mortgage foreclosure action and excessive loan modification fees. The mortgage lender was entitled to foreclose and collect the assessed fees under the terms of the loan documents, and thus the borrower could not prove any deceptive conduct in violation of the TDCA.  Fields v. JP Morgan Chase Bank, United States District Court for the Northern District of Texas.
• A debt collector’s voice message stating that “we will be sending you to court” was not a misrepresentation of the status of the plaintiff’s debt under Section 1692e(2)(A) of the Fair Debt Collection Practices Act (FDCPA) despite the fact that no legal action had been filed, because an unsophisticated debtor would not have been led by the message to believe that a lawsuit had already been filed. However, the message did violate Section 1692e(5) of the FDCPA because it threatened legal action that the debt collector did not intend to take, as demonstrated by the amount of time that passed after the message without any legal action. Additionally, the debt collector had not filed any legal action against any debtors in Illinois. Aitken v. Debt Management Partner, LLC, United States District Court for the Central District of Illinois.
• A debt collection notice did not mislead a debtor about the amount of the debt where it itemized the amounts owed and stated the total amount “currently” owed. That it demanded an amount in excess of the amount “currently” owed did not violate Section 1692g(a) of the FDCPA, where the notice stated that the additional amounts would not be owed if payment was made before a certain date. Anselmi v. Shendell & Associates, P.A., United States District Court for the Southern District of Florida.
• A debt collection notice that stated that a collection fee of “$0.00” was owed stated a claim for deceptive conduct under the FDCPA, because the least sophisticated debtor might be led by the statement to believe that a collection fee might be sought in future. Tylke v. Diversified Adjustment Service, Inc., United States District Court for the Eastern District of Wisconsin.
• A debtor alleged that language in a debt collection letter stating that the creditor “is required to file a form 1099C with the Internal Revenue Service for any cancelled debt of $600 or more” and advising the debtor to consult its tax advisor regarding any tax questions violated 1692e of the FDCPA. The court found that the debtor stated a claim, because the alleged statement did not accurately reflect controlling law and was deceptive. The statement did not advise the debtor of the many exceptions to the IRS requirement and there did not appear to be a legitimate informational purpose for the statement. Good v. Nationwide Credit, Inc., United States District Court for the Eastern District of Pennsylvania.

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.