Category Archives: Debt Collection

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Individuals Can Restructure Personal Guaranties of Defunct Business’s Debt in New Bankruptcy Subchapter V

Earlier this year, Chapter 11’s new Subchapter V became a part of the Bankruptcy Code when the Small Business Reorganization Act of 2019 (SBRA) became effective. Very shortly thereafter, the CARES Act expanded the debt limits for a business or individual to qualify as a debtor under the SBRA. In the wake of these new … Continue Reading

Alabama Bankruptcy Court Substantially Reduces Award of Attorney’s Fees

In practice, it is not uncommon for bankruptcy debtors to file suit against creditors or debt collectors for stay and discharge injunction violations. Often, they will do so before making any meaningful attempt to communicate with the creditor or debt collector to request that they stop their improper collection efforts. The Bankruptcy Court for the … Continue Reading

Bad News for Sixth Circuit Creditors as Court Adopts Expansive Definition of Autodialer with Supreme Court Review Pending

The Sixth Circuit has weighed in on an issue with the power to change the course of TCPA litigation nationwide: What constitutes an automatic telephone dialing system, more commonly known as an autodialer? Since the FCC’s 2015 order, which stated that any device with the potential ability to generate a list of numbers was an … Continue Reading

Eleventh Circuit Holds Plaintiffs Must Have Incurred Concrete Injury for Article III Standing to Sue under FDCPA

Under the Fair Debt Collection Practices Act (FDCPA), debt collectors are prohibited from using “false, deceptive, or misleading representation[s]” in connection with collecting debts. If a debt collector violates the FDCPA, the debt collector may be liable in the amount of the actual damages incurred by a debtor resulting from the FDCPA violation. Further, additional … Continue Reading

If You Thought the TCPA Was on Its Way Out, Think Again: The Supreme Court Expands Its Prohibitions Instead

One of the most aggressive attacks on the Telephone Consumer Protection Act (TCPA) recently made its way to the United States Supreme Court in Barr v. American Association of Political Consultants. With Chief Justice John Roberts questioning why “the whole statute shouldn’t fall” during oral argument, hopes were high that the TCPA might finally be … Continue Reading

CFPB Plans to Publish Final Debt Collection Rules in October

On Thursday, July 2, the Consumer Financial Protection Bureau (CFPB) announced that it plans to publish final debt collection rules in October 2020. The final rules will be the first rules clarifying the nearly 40-year-old Fair Debt Collection Practices Act (FDCPA) and are expected to address a variety of topics including: Communications with borrowers; Guidance … Continue Reading

Pre-Bankruptcy Automatic Stay Waivers – More Valuable Than Ever These Days?

In the very unusual period in which we find ourselves today, it seems to be common wisdom that an avalanche of commercial loan defaults is coming. As such, it is a good time to take a fresh look at the terms and provisions used in commercial workout documents, whether in a simple agreement that extends … Continue Reading

Having Trouble with CARES Act Forbearances in Ch. 13 Bankruptcy? You’re Not Alone!

Guest Author: Karlene A. Archer of Karlene A. Archer Law P.L.L.C. Consumers that have pending Chapter 13 bankruptcy cases undoubtedly suffered from financial hardship prior to the COVID-19 pandemic. For many of those consumers, the pandemic may have exacerbated that hardship. The CARES Act’s mortgage forbearance provisions allow some breathing room for consumers that anticipate … Continue Reading

COVID-19 Ripple Effects Are Coming – Lenders Must Get Ready

The coronavirus pandemic is affecting businesses large and small. Now is the time for lenders to prepare for its effect on business borrowers. Industries Already in Distress In February, a PricewaterhouseCoopers (PwC) report identified five industry sectors likely to see the greatest restructuring activity in 2020: Energy Retail Dining and food service Auto suppliers Specialty … Continue Reading

Maryland Court of Appeals Bars Confessed Judgment Clauses in Consumer Contracts

A recent decision from the Maryland Court of Appeals provided somewhat surprising new guidance on the permissibility of confessed judgment clauses in consumer contracts. In Goshen Run Homeowners Association, Inc. v. Cisneros, the Court concluded that Maryland’s Consumer Protection Act (the “Maryland CPA”) prohibits all confessed judgment clauses in all consumer contracts. In the underlying … Continue Reading

Eleventh Circuit Endorses Narrow Definition of TCPA Autodialer Creating Circuit Split

On January 27, 2020, a federal court of appeals issued a significant decision interpreting the Telephone Consumer Protection Act (commonly referred to as the “TCPA”) in a way that limits the expansive potential liability companies face under the statute. In Glasser v. Hilton Grand Vacations Company, the U.S. Court of Appeals for the Eleventh Circuit … Continue Reading

The Small Business Reorganization Act – A New Subchapter for Small Businesses

Since the 2005 amendments to the Bankruptcy Code, small business debtors have continued to struggle to reorganize effectively under Chapter 11 of the Bankruptcy Code. On Friday, August 23, 2019, President Trump signed the Small Business Reorganization Act of 2019 into law in an effort to address some of these issues. The act aims to … Continue Reading

CFPB Extends the Comment Period for Proposed Debt Collection Rule in Response to Consumer Advocate and Industry Requests

The Consumer Financial Protection Bureau (CFPB) formally extended the comment period for its proposed debt collection rulemaking on Friday, August 2. Rather than requiring that all comments be submitted by August 19, 2019, anyone interested in submitting a comment now has an extra 30 days to do so. The official comment period for the debt … Continue Reading

Does the New Debt Collection Rule Apply to First-Party Creditors?

Last November, Bradley’s Financial Services Perspectives team predicted that the Consumer Financial Protection Bureau’s (CFPB) then upcoming Notice of Proposed Rulemaking (NPRM) for the Fair Debt Collection Practices Act (FDCPA) might cause concern for first-party creditors. By way of background, the statutory scope of the FDCPA does not reach first-party creditors, instead applying only to … Continue Reading

New “Do Not Sell” Nevada Privacy Law Requirement Rolls Out Ahead of CCPA Deadline

States across the country are floating privacy-related legislation in many forms, and California continues to consider many potential amendments to the landmark California Consumer Privacy Act (Cal. Civ. Code 1798.100 et seq., “CCPA”), which goes into effect on January 1, 2020. On May 30, a law of significance to sellers of consumer personal information was … Continue Reading

Application of the Fair Debt Collection Practices Act in Bankruptcy

On October 17, 2018, the Consumer Financial Protection Bureau (CFPB) released its Fall 2018 rulemaking agenda. Among the items on the agenda was the CFPB’s planned issuance – by March 2019 – of a Notice of Proposed Rulemaking (NPRM) for the Fair Debt Collection Practices Act (FDCPA). The goal of the NPRM is to address … Continue Reading

Supreme Court Holds Foreclosure Firms Are (Generally) Not Debt Collectors under the FDCPA

Conducting a foreclosure does not make one a “debt collector,” at least for the general purposes of the Fair Debt Collection Practices Act (FDCPA). That fact is the upshot of yesterday’s unanimous Supreme Court decision in Obduskey v. McCarthy & Holthus LLP. In Obduskey, the law firm of McCarthy & Holthus LLP was hired to … Continue Reading

CFPB’s Upcoming Debt Collection Proposed Rule: What to Expect on Timing

The Consumer Financial Protection Bureau (CFPB) previously indicated in its Fall 2018 Rulemaking Agenda that it intends to issue a Notice of Proposed Rulemaking (NPRM) in the Spring of 2019 regarding debt-collection practices and the Fair Debt Collection Practices Act (FDCPA). The regulatory agenda also suggests that the proposed rule may be released as soon … Continue Reading

First Party Creditors Should Carefully Consider the Upcoming Debt Collection Rules

On October 17, 2018, the Bureau of Consumer Financial Protection (BCFP), formerly known as the CFPB, announced that it plans to issue a Notice of Proposed Rulemaking (NPRM) for the Fair Debt Collection Practices Act (FDCPA) by March 2019. The NPRM will likely have a dramatic impact on collection practices for debt collectors. But, what … Continue Reading

BCFP 50-State Complaint Snapshot Contains Lesson for Debt Collection Industry

Earlier this week, the Bureau of Consumer Financial Protection (BCFP) released a 50-State Complaint Snapshot. Credit reporting, debt collection, and mortgage continued to be the top three categories of complaints both nationwide and in most states. The percentage of consumer reporting complaints did increase by 11 percent from 2016 to 2017 and surpassed debt collection … Continue Reading

BCFP Enters into Consent Order with Small Dollar Lender

On October 24, 2018, the Bureau of Consumer Financial Protection (BCFP), formerly known as the CFPB, entered into a Consent Order with Cash Express, LLC. Cash Express is a small dollar lender based in Cookeville, Tennessee, that operates 328 retail lending outlets in Alabama, Kentucky, Mississippi, and Tennessee, and offers short-term loans and check cashing … Continue Reading

BCFP Revitalizes Efforts to Enact FDCPA Regulation

On October 17, 2018, the Bureau of Consumer Financial Protection (BCFP), formerly known as the CFPB, announced that it plans to issue a Notice of Proposed Rulemaking (NPRM) for the Fair Debt Collection Practices Act (FDCPA) by March 2019. The NPRM will address “how to apply the 40-year old [FDCPA] to modern collection processes,” including … Continue Reading

Can You Hear Me Now? Important Considerations for Avoiding Penalties under the TCPA after ACA International

In a previous blog post, we examined the “mixed bag” result of the D.C. Circuit Court of Appeals opinion in ACA International v. Federal Communications Commission. The ACA International decision narrowed the scope of potential liability for businesses under the Telephone Consumer Protection Act (TCPA) by striking down inconsistent and overly broad portions of the … Continue Reading

CFPB Issues Second Consent Order under Acting Director Mulvaney

Security Group, Inc. and several of its wholly owned subsidiaries entered into a consent order with the Consumer Financial Protection Bureau (CFPB) in which it agreed to injunctive relief and to pay a $5 million penalty. Security Group is a financial services company that originates, purchases, services, and collects on short-term secured and unsecured loans. … Continue Reading
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