Case Law Updates
SMITH V. SELECT PORTFOLIO SERVICING, INC.
The plaintiff alleged that Select Portfolio Servicing Inc. (“SPS”) violated FDCPA 15 U.S.C. § 1692(e) by providing her with 10 “subsequent communications” stating “This is an attempt to collect a debt. All information obtained will be used for that purpose.” and did not state that the “communication was from a debt collector.”
The court dismissed the complaint for failure to state a claim, explaining that the FDCPA 15 U.S.C. § 1692e(11) requires debt collectors to provide a "mini-Miranda" warning to consumers, but it does not place the required disclosure in quotation marks or set forth any specifically required wording for the disclosure. It merely defines what the content of the required disclosure will be. Further, the court indicated that the disclosure is sufficient if it is clear that it is sent for the purposes of collecting the debt. There are no "magic words" which must be included in the letter. A statement that “This is an attempt to collect a debt. All information obtained will be used for that purpose.” without including "communication was from a debt collector" was found in compliance with FDCPA and would meet the "least sophisticated consumer" test.
YEH HO V. WELLS FARGO, N.A.
This case is remanded to District Court for RESPA claim review. Here the plaintiff executed the proposed loss mitigation agreement and returned it to the servicer; however, she never received any confirmation from the servicer that the agreement was accepted and did not receive the fully executed copy of the agreement back. The court considered the executed loan modification agreement as a loss mitigation application for the purposes of RESPA sections 1024.41(b)(2)(B) and 1024.41(g).
The court also considered whether Florida’s litigation privilege bars the federal RESPA claim. It found that the district court erred to dismiss RESPA claims based on the finding that the state law requirements are not preempted by RESPA. Under Florida law, absolute immunity attaches to “any act occurring during the course of a judicial proceeding, ... so long as the act has some relation to the proceeding.” the Florida Supreme Court has held that the litigation privilege bars claims under the Florida Consumer Collection Practices Act that are based on acts that occur during judicial foreclosure proceedings “so long as the act has some relation to the proceeding.” However, these requirements will contradict RESPA and should be preempted.
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