Validation Notice Attached to Complaint Results in FDCPA Lawsuit

An attempted validation notice pursuant to 15 U.S.C. §1692(g) attached to a Complaint in a lawsuit may be considered as deceptive and misleading to the “least sophisticated consumer” under the Fair Debt Collection Practices Act. In Battle v. Gladstone Law Group, P.A., law firm, acting as counsel for Bank of America, N.A., filed a complaint in Florida State Court to foreclose on Gina Battle’s mortgage and to enforce a promissory note. Attached to the State Court complaint and summons was a document entitled “Notice Required by the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692g.” The Notice was presumably served to inform Gina Battle of her rights concerning validation of the debt and provide her with 30 days to request validation of the debt. The summons issued by the State Court along with the State Court complaint informed Battle that she had 20 days to file a response with the court. Battle sued the law firm, Gladstone Law Group, and attorney Ron Gladstone, under the Fair Debt Collection Practices Act alleging that they violated the FDCPA because the Notice attached to the state court Complaint was deceptive and misleading to the “least sophisticated consumer.” The federal lawsuit was converted into a Class Action alleging that that the class was so large that joinder of all members of the Class was impractical and that the class was in excess of 100. The District Judge ruled that an FDCPA notice incorporated into a mortgage foreclosure summons and complaint, such as the one used by the Gladstone Law Group, does not necessarily effectively convey notice of the rights to the “least sophisticated consumer.” The Court went on to say that the “least sophisticated consumer” could be deceived or confused when the summons sets out a 20-day deadline to respond to the lawsuit and the attached notice provides for a 30-day deadline to request validation of the debt.
Battle v. Gladstone Law Group, P.A., Case Number: 12-14458-Civ-Martinez-Lynch.

"Least Sophisticated Consumer" Standard Under the FDCPA

The Eleventh Circuit and the majority of federal circuit courts have adopted the “least-sophisticated consumer” standard in analyzing claims brought under the Fair Debt Collection Practices Act (FDCPA).   The least-sophisticated consumer standard is consistent with FDCPA’s goal of expanding the consumer protections originally provided by the Federal Trade Commission Act.   The purpose of the least-sophisticated-consumer standard, here as in other areas of consumer law, is to ensure that the FDCPA protects the gullible as well as the shrewd.   No requirement of proof of actual deception of the consumer is necessary.
Courts apply this objective standard in order to implement the FDCPA’s dual purpose: to protect consumers against deceptive debt collection practices and to protect debt collectors from unreasonable constructions of their communications to consumer.    The least sophisticated consumer will be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.    However the test also has an objective component in that while protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection communications by preserving a quotient of reasonableness.

Massive Student Loan Filings by National Collegiate Student Loan Trust

National Collegiate Student Loan Trust has filed a large number of lawsuits against consumers in the Central Florida Area.  These lawsuits are defective on their face as there are no allegations of assignment stated in the complaint.  Moreover, many of the lawsuits are being filed by a Seattle, WA law firm by the name of Weinstein, Pinson & Riley, P.S. Based upon the failure of these crucial allegations, the lawsuits are ripe for dismissal. Just in 2013, Anthony Colunga of Weinstein Pinson & Riley has filed over 67 lawsuits against Orlando consumers; 36 lawsuits against residents of Seminole County; and, 33 in Volusia County, all on behalf of National Collegiate Student Loan Trust.

National Collegiate Student Loan Trust is a Delaware Trust that is currently pursuing many consumers in the Central Florida area on student loans. In most cases, National Collegiate Student Loan Trust is the holder of a loan but does not have the necessary assignments needed to prosecute the case.

Other law firms that represent National Collegiate Student Loan Trust in Central Florida are:

Pollack and Rosen, P.A.
Anthony Colunga, Esq.
Hayt, Hayt & Landau, P.L. 

Class Action filed againt Udren Law Offices for violations of FDCPA

A class action lawsuit filed in May of 2013 under the Fair Debt Collection Practices Act in United States District Court, Southern District of Florida, against Udren Law Offices, P.C., Courtney Jared Bannan and Mark J. Udren. Case 2:13-cv-14219-DLG. The lawsuit alleges that in connection with the filing of mortgage foreclosure actions, the validation notice stated that the consumer must object to the alleged debt "in writing." This practice has been ruled as a false, misleading and deceptive practice under the Fair Debt Collection Practices Act. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1634–35 (2010).

Plaintiff, on behalf of herself and other class members, is seeking statutory and emotional damages against Udren Law Offices and has demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article are the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Northstar Mortage pursues collection after bankruptcy discharge

On March 18, 2013, a lawsuit was filed by James Dooley under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act in United States District Court, Orlando, Florida, alleging that Dooley had a mortgage with Bank of America which eventually went into default. In August of 2011, Mr. Dooley filed for bankruptcy and received a discharge in January of 2012. The mortgage with Bank of America was listed on the bankruptcy schedules. Notwithstanding the discharge of the note, Nationstar Mortgage continued collection activities against Mr. Dooley attempting to collect the discharged debt.

In an unrelated case, another lawsuit was filed in April of 2013 also under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act in United States District Court, Orlando, Florida, alleges that consumers took out a mortgage with MorEquity. In August of 2010, consumers filed for bankruptcy and received a discharge in November of 2010. The mortgage with MorEquity was listed on the bankruptcy schedules. Notwithstanding the discharge of the note, Nationstar Mortgage continued aggressive collection activities against the consumers including collection calls and collection letters attempting to collect the discharged debt.

Both the Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act make it unlawful for any person, in attempting to collect a debt, to: "Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist."

Plaintiffs in both lawsuits are seeking statutory and emotional damages against Nationstar Mortgage, LLC and have demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Ocwen Loan, Udren Law Offices, sue consumer after Bankruptcy Discharge

A lawsuit filed in April of 2013 under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act in United States District Court, Orlando, Florida, Case No. 6:13-cv-625-Orl-cv-22DAB, alleges that in November of 2006, the consumer took out a mortgage with the predecessor in title of Ocwen Loan Servicing, LLC. In November of 2009, consumer filed for bankruptcy and received a discharge in April of 2010. The mortgage with Ocwen was listed on the bankruptcy schedules. Notwithstanding the discharge of the note, on March 13, 2013, Ocwen and Udren Law Offices sued the consumer for foreclosure in Osceola County, Florida, on the discharged note and mortgage.

Correspondence indicates that Ocwen Loan Servicing was fully aware of plaintiff's bankruptcy for over one year prior the the filing of the foreclosure action. After the federal lawsuit was filed, Udren Law Offices filed papers in the foreclosure proceedings dropping all claims againt the consumer seekign persoanl liability.

Both the Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act make it unlawful for any person, in attempting to collect a debt, to: "Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist."

The consumer is being represented by N. James Turner of Orlando, FL.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Midland Funding, Pollack & Rosen, sue wrong person on alleged debt

A lawsuit filed in April of 2013 under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act in United States District Court, Orlando, Florida, alleges that Midland Funding, LLC and Pollack & Rosen, P.A. sued the wrong person in county court in Orlando. To make matters worse, Midland Funding, LLC, through its managing attorney, Amanda Duffy, filed another case against the same wrong person on the date that the federal case was filed.

The Florida Consumer Collection Practices Act makes it unlawful for any person, in attempting to collect a debt, to: "Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist."

Plaintiff is seeking statutory and emotional damages against Midland Funding, LLC and Pollack & Rosen, P.A. and has demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Lawsuit: JPMorgan Chase & Co. photographs consumer's home who has no mortgage

A lawsuit filed in April of 2013 under the Florida Consumer Collection Practices Act in Seminole County, Florida, alleges that a representative of JPMorgan Chase & Co., was observed photographing the Plaintiff's home, taking notes and then attaching a collection notice to her front door. Too exacerbate the situation, the JPMorgan Chase & Co. representative was observed by the Plaintiff's son. The note said: "IMPORTANT - PLEASE CALL JPMorgan Chase & Co. - "WE ARE EXPECTING YOUR CALL TODAY."

The Complaint goes on to allege that the homeowner had no mortgage or other loan with JPMorgan Chase & Co.

The Florida Consumer Collection Practices Act makes it unlawful for any person, in attempting to collect a debt, to: "Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist."

The lawsuit relies, in part, on the "least-sophisticated consumer standard" which has at its purpose to expand the consumer protections originally provided by the Federal Trade Commission Act and to ensure that the consumer collection practices laws protect the gullible as well as the shrewd.

Plaintiff is seeking statutory and emotional damages against JPMorgan Chase & Co. and has demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Lawsuit: Bank of America/Kass Shuler, Continue Pursuing Foreclosure/Auction After Modification

A lawsuit filed under the Fair Debt Collection Practices Act in Unites States District Court, Middle District of Florida, Orlando, alleges that Bank of America and its law firm, Kass Shuler, P.A., continued to prosecute a mortgage foreclosure action up to obtaining a final judgment setting a public sale date, despite the fact that the homeowners had obtained a permanent modification from Bank of America and were current on their mortgage payments.

The facts of the case begin with Bank of America, through its successors in interest, extending credit to the Plaintiffs through a first mortgage on their primary residence, Loan No. 164910692.

At some point prior to December of 2012, the mortgage went into default and on November 22, 2011, Bank of America , through its attorneys Kass Shuler, P.A., filed a mortgage foreclosure action against the Plaintiffs in Circuit Court, Orange County, Florida, alleging, among other things, that Plaintiffs were in default on their mortgage.

After November of 2011, Plaintiffs made application to Bank of America, for a modification of their existing first mortgage so that they would be better able to satisfy their financial commitments to Bank of Americasaid Defendant, and, most important, keep their home.

Plaintiffs provided Bank of America with all of the documents and other information that they required in order to obtain the loan modification.

Plaintiffs applied for the loan modification under the Home Affordable Modification Program (HAMP) which, according to Bank of America’s website: “is one of the federal government’s Making Home Affordable programs. The government’s goal for modifying your loan is to help you get a more affordable and sustainable monthly mortgage payment.”

In processing the application for loan modification, Bank of America, represented to the Plaintiffs that if they successfully made all of their Trial Period Plan payments, they would receive a permanent Modification Agreement explaining the changes to their loan terms and that once this document was been signed, notarized and returned to Bank of America, the modification would become permanent.

On December 18, 2012, Bank of America approved the Plaintiffs’ loan modification request and, according to documents, the modification would become permanent upon the Plaintiffs signing and returning the enclosed documents.

Plaintiffs anxiously and gratefully accepted the loan modification, executed a Loan Modification Agreement and returned it to Bank of America.

In full compliance with the Loan Modification Agreement, Plaintiffs continued to timely pay to Bank of America, each and every monthly mortgage payment required under their modified mortgage.

According to the lawsuit, Kass Shuler, P.A. submitted documents to the Circuit Court in the mortgage foreclosure action, contending that the Plaintiffs were in default on their first mortgage with Bank of America when, in fact, the Plaintiffs were current with respect to their obligations with Bank of America.

On March 6, 2013, Plaintiffs received a conformed copy of a Final Judgment for Plaintiff ordering that unless they paid a total of $353,985.67 to Bank of America, that their home would be sold at a public sale to the highest bidder on June 4, 2013 at 11:00 am.

The lawsuit further alleges that the Final Judgment for Plaintiff was drafted and prepared by Kass Shuler, P.A. and all of the information contained therein was supplied and furnished by Kass Shuler, P.A.

The fact and content of the Final Judgment was a complete shock to Plaintiffs because they had faithfully made all of their payments to Bank of America under the terms of the modified mortgage.

The lawsuit also alleges that Kass Shuler, P.A. promoted and reinforced its public image through its website, marketing materials, and other forms of advertising, for the purpose of creating the impression that it possessed special expertise in the areas of foreclosure litigation and problem resolution. What follows is a direct quote from the Kass Shuler, P.A. website:

"Nationally recognized for its experience and expertise in representing creditors throughout the state of Florida, our Collections department comprises highly qualified attorneys, paralegals, investigators and collectors specializing in both commercial and retail matters. Our exceptional online database system allows clients to easily access case status, promoting optimum communication and process efficiency."

Plaintiffs have requested statutory damages, declaratory relief and emotional damages and have demanded a trial by jury.

[The allegations in the Fair Debt Collection Practices Act lawsuit described in this article the plaintiff’s version of the facts and must be proven with competent evidence. Moreover, these allegations may be denied or disproven by the defendants.]

Lawsuit: Bank of America Manipulated Financial Information to put Consumer in Default on Mortgage

A lawsuit filed in Lake County Florida in March of 2013 alleges that the wife/homeowner, Mrs. Davis, became disabled and unable to work and made application to Bank of America for a modification of their mortgage so that they would be better able to satisfy their financial commitments and, most important, keep their home. Mr. and Mrs. Davis provided Bank of America with all of the documents that they required in order to obtain the modification. The application for modification was made pursuant to he Home Affordable Modification Program (HAMP) which, according to the Bank of America’s website: “is one of the federal government’s Making Home Affordable programs. The government’s goal for modifying your loan is to help you get a more affordable and sustainable monthly mortgage payment.”

According to the lawsuit, in connection with the application for loan modification, Bank of America represented to Mr. and Mrs. Davis that if they successfully made all of their Trial Period Plan payments, they would receive a Modification Agreement explaining the changes to their loan terms and that once this document was been signed, notarized and returned to Bank of America, the modification would become permanent.

On or about February 16, 2012, Bank of America approved the Plaintiffs’ loan modification request and, according to Bank of America, the modification would become permanent.

After receiving approval for their modification, Mr. and Mrs. Davis continued to timely pay to Bank of America each and every monthly mortgage payment required under their modified mortgage.

It is alleged that on or about February 20, 2013, at 7:50 a.m., Mrs. Davis received a telephone call from an employee of the Bank of America by the name of Gabby, who informed her that they were $17,000 behind in their mortgage payments. The fact and content of the early morning telephone call was a complete shock to the Davises because they had faithfully made all of their payments to Bank of America for over 11 months under the terms of the modified mortgage. In the February 20, 2013 early morning telephone conversation, Gabby told Mrs. Davis to look at her statements from Bank of America and that she would see the basis for the claim of arrearage of $17,000. Mrs Davis immediately looked at her statements but saw no arrearage. During the February 20, 2013 telephone call, Gabby also told Mrs. Davis that Bank of America was going to file a foreclosure action against them.

At the time of the February 20, 2013 call from Bank of America threatening foreclosure, the father of Mrs. Davis had recently passed away and she was in a state of mourning.

Fortunately, Plaintiffs had maintained all of their records relative to the balance of the modified mortgage with the Bank of America and all of these records indicated that their mortgage with Bank of America was current. However, according to the lawsuit, a few days after the threatening phone call, Mrs. Davis checked her online account with Bank of America to again verify financial information, outstanding balance and list of payments previously made to Bank of America under the modified mortgage. To her shock, Mrs. Davis discovered that Bank of America had manipulated the online financial information in Plaintiffs’ account to show that the Plaintiffs’ mortgage was not current but was in arrears.

Plaintiffs have demanded a trial by jury.

Collection Calls from Bank of America

A Deltona Florida woman had a mortgage with Bank of America and, like many today, needed to modify her mortgage. So, she hired a lawyer a requested a loan modification from Bank of America.

In the process of the modification process, the consumer's attorney sent a letter to Bank of America and formally asked them not to contact her for any reason regarding her mortgage. This type of notification is normal and both state and federal law prohibit a debt collector from contacting the consumer after receiving such letter. Bank of America ignored the letter and continued to contact the consumer.

So, the consumer retained additional counsel who specializes in fair debt collection practices. The new debt lawyer contacted the legal department of Bank of America and requested that the cease all collection calls to the consumer in accordance with state and federal law. Bank of America continued to make collection calls to the consumer. In frustration, the consumer, through her expert debt lawyer sued Bank of America requesting that they stop making collection calls in accordance with the law. Bank of America continued to call the consumer. Then, finally, the case was settled. Bank of America presented the consumer with a lengthy settlement agreement containing a confidentiality agreement. The consumer reluctantly agreed and her debt lawyer agreed to the essential terms of the settlement agreement. However, Bank of America legal department had to have final approval of the settlement agreement. Well, that approval process must have gone to the same department that approves loan modifications. The settlement was never approved, the consumer never received her settlement funds and, her loan modification has still not been approved. Is that the end of the story? No, the consumer is still receiving collection calls from Bank of America.

In most debt harassment cases, Bank of America is exempt from the Fair Debt Collection Practices Act because they are attempting to collect their own debts - a specific exemption in the law. However, they are not exempt under the Florida Fair Debt Collection Practices Act as that law applies to "any person."