Victorious Defense of FDCPA “Foti” Claim with Bona Fide Error Defense
Moss & Barnett defended a national collection agency faced with claims in federal court that the agency failed to provide the FDCPA mini-Miranda notice in recorded voice messages. Prevailing on a motion for summary judgment, we established that the agency's procedures - including the posting of a note card in the work space of every collector advising of the company's policy to provide the mini-Miranda - was sufficient evidence to support a successful bona fide error defense. This is believed to be the first Foti claim a collection agency defeated in court with the bona fide error defense.
Complete Dismissal of Consumer Class Action Alleging Violations of the FDCPA, Deceptive Acts, Fraud, and Conspiracy
Moss & Barnett successfully defeated a putative consumer class action commenced in federal court in Ohio alleging that a national debt buyer and a national collection agency violated the FDCPA, engaged in deceptive and fraudulent acts, and engaged in a conspiracy. Our client prevailed on a motion to dismiss in the case, which established that the statute of limitations and previous releases barred litigation of the claims alleged.
Landmark Dismissal of “Professional Negligence” Claims against Computer Programming Consultants
Moss & Barnett prevailed on motions to dismiss claims in two separate federal courts alleging that computer consultants employed by our client committed "professional negligence" in connection with the creation of a commercial website. In cases of first impression in both Michigan and Minnesota, Moss & Barnett established that the traditional scope of professional negligence claims should not be extended to include computer consultants, despite the plaintiff's claim of damages in the "hundreds of thousands of dollars" arising from the alleged negligence.
Major FDCPA Victory against Abusive and Harassing Calling Campaign Claims
Moss & Barnett defended one of the highest call volume cases at the time to be dismissed on summary judgment. Our client debt collector was sued by a consumer claiming that the collector engaged in an abusive and harassing calling campaign in violation of the FDCPA and Rosenthal FDCPA. Moss & Barnett filed a motion for summary judgment in the case, arguing that 69 call attempts over a 115-day period did not evidence an intent to annoy, harass, or abuse the consumer. The court agreed and dismissed the consumer’s claims.
Complete Dismissal of FDCPA Claim Premised on FCRA Threat and Debt Older than Seven Years
On a motion for judgment on the pleadings, Moss & Barnett successfully argued that its debt-collector client did not violate the FDCPA by stating in a collection letter that a negative credit report may be submitted if the consumer failed to repay a debt. At the time of the letter, the debt was more than seven years old. The consumer alleged that the statement was false and misleading and threatened action that cannot legally be taken because the FCRA does not permit the reporting of a debt that is more than seven years old. The court disagreed with the consumer, finding that the FCRA prohibition, on its face, applied to consumer reporting agencies, not debt collectors or debt owners. Because it was not illegal for the collector to report the debt to a credit reporting agency beyond the seven-year window, the court dismissed the consumer’s claims.
Obtain Key Decision on Actions Taken after Settlement and Cancellation of a Debt and FDCPA Violations
In an Illinois federal district court, Moss & Barnett secured the dismissal of an action filed against its collector client by a consumer alleging that the collector issued an inaccurate cancellation of debt form (Form 1099-C) in violation of section 1692e of the FDCPA. Moss & Barnett persuasively argued that at the time the collector issued the form, it had already settled the debt and cancelled the unpaid portion. As a result, the collector was not engaging in debt collection, and could not, therefore, have violated section 1692e of the FDCPA, which regulates action “in connection with the collection of any debt.” The court agreed, and granted judgment on the pleadings in favor of Moss & Barnett’s client.
Successful Defense Leads to Granting of Motion to Compel Arbitration for a Non-Signatory to Arbitration Agreement
Moss & Barnett successfully argued a motion to compel arbitration of an FDCPA claim brought against its clients: a debt collector and debt owner. We persuaded the court against the plaintiff’s argument that the defendants were not entitled to enforce the arbitration agreement because they were not signatories to the original contract between the creditor and the plaintiff. Relying on ordinary principles of contract and agency and the doctrine of equitable estoppel, the court found that Moss & Barnett’s clients were entitled to enforce the arbitration clause as successors-in-interest and/or agents of the successors-in-interest. The court also rejected the plaintiff’s arguments that the FDCPA dispute was not covered by the arbitration clause and that the clause was unconscionable.
Debt Collector Prevails against FDCPA Claim Alleging Technical Violations
Our debt collector client prevailed in a lawsuit commenced in federal court in New York in which the consumer alleged that a technical violation of a New York City ordinance gave rise to a FDCPA claim. The court disagreed with the consumer, and held that even the so-called “least sophisticated consumer” would not have been confused or misled by the debt collector’s communication. The court also declined to allow the consumer to amend her complaint to add a claim that Moss & Barnett’s client had engaged in unfair or unconscionable debt collection practices.
Resounding Defeat of FCRA and Credit Defamation Claims
In federal court in Minnesota, Moss & Barnett successfully argued that the actions of its debt-collector client did not give rise to FCRA or credit defamation claims. The court granted summary judgment in favor of the debt collector on the FCRA claim, finding that our client had conducted a reasonable investigation of the consumer’s dispute given the facts provided to it by the consumer reporting agency. Moss & Barnett argued further, and the court agreed, that the consumer’s state law credit defamation claim was preempted by the FCRA. Both the FCRA and credit defamation claims were dismissed.
Defend Property Management Co. in FDCPA Claims, Major Victory Establishes Client Not a Debt Collector
On summary judgment in a case brought in federal court in Minnesota, John Rossman secured a dismissal of FDCPA claims against his client, a property management company. The court agreed with John’s argument that a property management company that has the right and responsibility to collect dues and assessments before they become overdue is not a “debt collector” for purposes of the FDCPA.
Complete Dismissal of FDCPA and State Law Claims Alleged by Bankrupt Debtor
In federal court in Oregon, Moss & Barnett secured a victory for its debt-collector client involving a case where a consumer sought declaratory relief against the debt collector and brought claims under the FDCPA, the Oregon Unlawful Debt Collection Act, and various state laws. The court found that the consumer, a debtor in bankruptcy, could not seek relief under the FDCPA where his bankruptcy gave rise to the claim under the FDCPA and his proper remedy was under the Bankruptcy Code. The court also found that the state law claims were similarly precluded by the Bankruptcy Code. Moss & Barnett secured summary judgment in its client’s favor on all claims brought against it.