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Did my Client Just Waive Privilege?!

For any attorney, whether new or seasoned, this can be a terrifying possibility. Privilege waivers can happen at any time and can have devastating consequences for your client’s case. This possibility is made even more precarious when one considers that jurisdictions have varying guidelines when it comes to what constitutes a waiver.

The Eleventh Circuit Calls Into Question the use of Letter Vendors as Violative of the FDCPA

The Eleventh Circuit in Hunstein v. Preferred Collection and Management Services, Inc. issued an opinion yesterday that confronted an issue of first impression, namely, whether a debt collector can use a third party vendor to send collection letters without violating the Fair Debt Collection Practices Act (“FDCPA”).  The facts were simple.  The defendant/debt collector used a third party letter vendor to send an initial “dunning” letter to the plaintiff/consumer.  In doing so, the defendant provided the vendor with the plaintiff’s name, his outstanding balance, the fact that his debt resulted from his son’s medical treatment, and his son’s name.  The plaintiff filed a lawsuit alleging that the defendant violated the FDCPA by disclosing his personal information to the third-party vendor.

The Third Circuit Explains That the ‘Least Sophisticated Consumer’ is Presumed to Have a Willingness to Read Collection Letters With Care

In the recent Third Circuit opinion rendered in Moyer v. Patenaude & Felix, A.P.C., the plaintiff brought a putative class action alleging that Patenaude & Felix violated the Fair Debt Collection Practices Act (“FDCPA”) by sending her a single collection letter. The letter advised the plaintiff that her debt had been assigned to the firm and stated: “If you wish to eliminate further collection action, please contact us at 800-832-7675 ext. 8500.”  The letter then went on to advise the plaintiff of her validation rights under §1692g.  Resolution of the alleged class action claims required the Third Circuit to decide whether the inclusion of the single sentence inviting a call would confuse the least sophisticated consumer.

The Minnesota Supreme Court Determines Retailer Cannot Claim a Sales Tax Offset Based on Uncollectible Debts

The Minnesota Supreme Court recently ruled that a large home improvement retailer cannot claim a sales tax offset based on uncollectible debts from purchases made on its private label credit card, in the case Menard, Inc. v. Commissioner of Revenue, case number A20-0241. The home improvement retailer, attempted to offset its sales tax liability pursuant to Minnesota Statues § 297A.81, subd. 1 that allows a taxpayer to offset against its current sales tax liability taxes “previously paid as a result of any transaction the consideration for which became a debt owed to the taxpayer that became uncollectible during the reporting period.”

After CFPB Refuses to Change FDCPA’s Strict Liability, Ninth Circuit Permits Bona Fide Error Defense for Statute of Limitations Mistake

The Consumer Financial Protection Bureau (CFPB) recently considered eliminating strict liability for one category of claims under the Fair Debt Collection Practices Act (FDCPA): claims asserting that a debt collector brought or threatened to bring legal action to collect a time-barred debt. The proposed revision to Regulation F would have required consumers to show that a debt collector knew or should have known the debt was outside the statute of limitations. Advocates for the change argued that strict liability was inappropriate because a debt collector can reach the wrong conclusion about a state’s application of the statute of limitations even after a thorough investigation and a consumer can raise the issue as an affirmative defense if he/she disagrees with the collector’s conclusion.  Debt Collection Practices (Regulation F), 86 FR 5766-01 (Jan. 19, 2021).

Confusion and Anxiety Fail to Satisfy a Plaintiff’s Burden Under the Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (“FDCPA”) was enacted in 1977 to eliminate abusive debt collection practices.  15 U.S.C. § 1692(e).  To further that goal, section 1692e of the FDCPA prohibits a debt collector from using false, deceptive, and misleading representations; section 1692f prohibits a debt collector from using unfair or unconscionable means; and, section 1692g requires a debt collector to provide certain information (the amount of the debt, name of creditor, and explanation of right to dispute a debt) to a consumer.

In Between a Rock and a Hard Place

Condemning Property When in the Process Of Obtaining Development Approvals

Typically, special districts in Colorado are required by local municipalities to construct various improvements in order to move forward to develop property.  These requirements can be imposed before, during, and after certain development approvals are obtained.  Special districts can find themselves in between a proverbial rock and a hard place when seeking to move forward with condemnation to construct improvements before having formal approval to move forward with the larger development.

Since When do Attorneys Have to Pay the Opposing Counsel Fees?!

Attorneys can be Held Responsible for Opposing Legal Fees if Discovery Rules are Neglected

This may be a question that has never crossed your mind. If so, then good for you. It means you’ve likely never been faced with sanctions. However, just because you haven’t, doesn’t mean you shouldn’t be aware of the possibility.

7th Circuit Issues 5 Rulings Clarifying Standing Under Fair Debt Collection Practices Act

Setting up the potential for the U.S. Supreme Court to confirm and strengthen its 2016 opinion in Spokeo v. Robins, the United States Court of Appeals for the Seventh Circuit issued a raft of five rulings this week that clarify Article III standing issues related to claims under the Fair Debt Collection Practices Act (FDCPA). Through these five opinions, the Seventh Circuit has unequivocally aligned itself with the Eleventh and D.C. Circuits in requiring a plaintiff to plead and provide “competent proof” of a concrete injury in fact to establish Article III standing.  What follows is a brief analysis of each opinion as it relates to a plaintiff’s burden to survive a motion to dismiss for lack of standing.

Missouri Bankruptcy Court Holds Debtor Must Be Currently Engaged in Commercial or Business Activities to Be Eligible to Make Subchapter V Election

EIGHTH CIRCUIT BANKRUPTCY MONITOR

In In re Thurmon, the Bankruptcy Court for the Western District of Missouri (Judge Norton) held that debtors who had ceased operation of their business and sold its assets pre-petition were not “engaged in commercial or business activities,” and therefore could not proceed under new subchapter V of chapter 11. Despite its order, the Court nonetheless signaled its willingness to confirm the debtors’ subchapter V plan with a modification, although the debtor had never sought approval of or distributed a disclosure statement as required for non-subchapter V chapter 11 debtors.

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