Consumers file FDCPA Class Action Against Weinstein, Pinson & Riley

Fifteen consumers filed a Class Action Lawsuit against Weinstein, Pinson & Riley in United States District Court in Orlando, Florida, alleging violation of the Fair Debt Collection Practices Act.  The Class Action Complaint arises out of a number of student loan lawsuits filed by Weinstein, Pinson & Riley on behalf of National Collegiate Student Loan Trust.    The Consumers are alleging that Weinstein, Pinson & Riley made misleading and deceptive statements in connection with its efforts to collect on student loans.
Ferrell, et al v Weinstein, Pinson & Riley, P.S., Case No. 6:13-cv-1965-Orl-36DAB.

[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.]

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.

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.]

What is “false, misleading and deceptive under the Fair Collection Practices Act?

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.”   Among the abusive tactics that the FDCPA sought to eliminate was the proscription of “false, misleading and deceptive” communications from debt collectors to consumers.

Consumer, Paula Maple, took out a loan from Midland Funding, LLC successor in interest to Bank of America, N.A., for personal, family, or household services.  Sometime thereafter the debt was transferred to the law firm of Sprechman & Associates, P.A. for collection.

On March 6, 2012, Sprechman & Associates, P.A. sent a letter to Paula Maple which stated in part:

“If your client fails to make payment or fails to make appropriate arrangements they will leave us with no choice but to subject all of their assets to actions to collect this Judgment.”

Paula Maple filed a lawsuit in United States District Court, Middle District of Florida, against Sprechman & Associates, P.A. alleging, among other things, that the statement in the letter were false given the numerous exemptions to executions on judgments.

Paula Maple also alleged in her lawsuit that the letter sent to her by Sprechman & Associates, P.A. violated the Fair Debt Collections Practices Act and the Florida Unfair and Deceptive Practices Act.

Whether a collection letter or other communication is false, deceptive, or misleading under the FDCPA is determined from the perspective of the objective least sophisticated consumer.  Under this standard, collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate.   Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

For more information about debt collection harassment, or Sprechman & Associates, P.A., visit us at http://www.ConsumerRightsOrlando.com.http://www.ConsumerRightsOrlando.com