Another district court has declined to follow the 11th Circuit’s holding in Crawford v. LVNV Funding LLC. On a motion for summary judgment, the Western District of Missouri granted summary judgment in favor of LVNV Funding in an adversary proceeding alleging that LVNV’s filing of a time barred proof of claim violated the FDCPA. Dunaway v. LVNV Funding, LLC, Adv. Pro. No. 14-4132 (W. D. MO.
Yesterday, the United States Supreme Court denied the Petition for Writ of Certiorari in LVNV Funding, LLC v. Crawford. The Court's refusal to hearCrawford leaves a split in the circuits as to whether proofs of claim are subject to the FDCPA.
Bankruptcies in the retail space are prevalent these days. Some of the more recent and prominent bankruptcies are Pacific Sunwear, Sports Authority, American Apparel and RadioShack. Even if you do not have a lease with a “big box” retailer, plenty of smaller retailers are in distress as well. For Landlords, what do you do if one of your tenants files Chapter 11?
Let’s start with what not to do.
Two decisions issued within a day of each other highlight the continuing debate over whether a time barred proof of claim violates the FDCPA and more importantly, whether the Bankruptcy Code preempts the FDCPA. As copycat cases continue to be filed, courts continue to resoundingly reject the rationale ofCrawford v. LVNV Funding, LLC, a decision out of the Eleventh Circuit.
The issue of whether the Bankruptcy Code precludes claims under the FDCPA took another twist in an opinion issued by the Second Circuit last week. In a pro consumer opinion, the Second Circuit seemingly changed direction by reversing the Southern District of New York’s dismissal of FDCPA claims which arose in part as a result of violations of the discharge injunction. See Garfield v. Ocwen Loan Servicing, LLC, 2016 U.S. App. LEXIS 3 (2ND Cir. Jan. 4, 2016).
While the FCC recently opined that consumers can revoke their consent to receive calls via an ATDS in any manner that clearly expresses a desire not to receive further messages, a district court in Illinois has set some perimeters on revocation. In Cholly v. Uptain Group, Inc., 2015 U.S. Dist. LEXIS 171415, C.A. No. 15 C 5030 (N.D. Ill. Dec.
Courts continuing to deal with Crawford copycat claims are bringing a sharper focus to the issue and looking closely at the conflict presented by the FDCPA and Bankruptcy Code. Three courts who have recently reviewed Crawford claims have dismissed them, concluding in all three cases that the filing of an otherwise accurate time barred proof of claim does not give rise to an FDCPA claim.
For the past year, many involved in the debt buyer industry have closely followed the 11th Circuit’s ruling in Crawford v. LVNV Funding, LLC. Last week, the bankruptcy court again dismissed the adversary proceeding. Crawford v. LVNV Funding, LLC, Case No. 08-30192-DHW, Adv. Pro. No. 12-030333-DHW (Sep.