UDAAP Council Weekly UDAAP Standards Report – 2/25/2015

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

• Debtors adequately stated a claim under the Florida Consumer Collection Practices Act (FCCPA) for alleged unfair and abusive debt collection practices by a timeshare creditor and its debt collector agent. The defendants moved to dismiss the complaint for failing to adequately allege abusive or harassing behavior. The court held that the frequency of defendants’ calls from an automatic dialing system (averaging 2.5 calls a day), coupled with debtors’ requests to cease communications, was sufficient to state a claim. Mangiaracina v. Orange Lake Country Club, Inc., United States District Court for the Middle District of Florida.

Deceptive

• Plaintiffs were barred from bringing an action against debt collectors under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law because they failed to allege any ascertainable loss. The complaint alleged that collection agents harassed the plaintiffs for collection of a nonexistent debt after a rental store falsely entered their information for several rental transactions that were never made. Moss v. Aaron’s, Inc., United States District Court for the Eastern District of Pennsylvania.
• Debtors’ class action alleging that defendant law firm was not acting in a legal capacity when it sent collection letters on its letterhead was dismissed for failure to state a claim. Debtors’ allegations rested on the contention that the volume of collection letters sent on the letterhead precluded meaningful attorney review. The court held that this allegation was conclusory and would need to be supported by specific facts in order to meet the plausibility standard. Barata v. Nudelman, Klemm & Golub, P.C., United States District Court for the District of New Jersey.
• A collection agency’s motion for summary judgment in an action brought by a class of debtors under the Fair Debt Collection Practices Act (FDCPA) was denied because the agency failed to establish that it was not acting as a debt collector under the FDCPA. The collection agency argued that the debts were not in default when they were transferred to the agency for collection, a condition which would preclude the FDCPA’s applicability to its collection efforts. Adopting the Ninth Circuit’s balancing test, the district court held that “the substance of the transaction . . . rather than the form alone” left questions of material fact as to whether the debts were in default at the time of their transfer. Mavris v. RSI Enterprises, United States District court for the District of Arizona.

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.

Best,
Marty