Leon County, Florida Circuit Judge, John C. Cooper, dismissed a lawsuit filed by National Collegiate Student Loan Trust for breach of contract in connection with an allegedly defaulted student loan. Judge Cooper ruled that the complaint was defective in that it failed to attach a copy of the contract sued upon.
In response to the order dismissing the Complaint, National Collegiate Student Loan Trust filed an Amended Complaint, with several attachments, including what it contended was a copy of the assignment from the original lender. However, the assignment offered by National Collegiate Student Loan Trust was to an entity named National Collegiate Funding, LLC and not the Plaintiff in the action.
National Collegiate Student Loan Trust v. Harvey, 2013-CA-2278.
Friday, January 24, 2014
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.]
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 Foreclosure Action Results in FDCPA Class Action
The Fair Debt Collection Practices Act (FDCPA) mandates that as part of noticing a debt, a debt collector must send the consumer a written notice containing -- along with other information – “the name of the creditor to whom the debt is owed.” This requirement is sometimes referred to as the “Debt Validation Notice.” In addition, the Act prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”
Surprisingly, many well established law firms have a fundamental misunderstanding of the application of this statutory requirement. A random survey of foreclosure actions filed throughout the State of Florida would reveal that a 1692(g) Validation Notice is routinely attached to mortgage foreclosure complaints. However, a “pleading,” such as a complaint in a lawsuit, can never be an “initial communication” that triggers the notice requirement under 1692(g). Moreover, sending such a notice can be deceptive and misleading to the “least sophisticated consumer.”
A recent case filed in United States District Court in Orlando, Florida, alleges that Shapiro, Fishman & Gache, LLP, acting as counsel for PHH Mortgage Corporation, filed a complaint in Seminole County, Florida, to foreclose on Linda Karp’s mortgage and to enforce a promissory note. Attached to the state court complaint and summons was a document entitled “Notice Required by the FDCPA, 15 U.S.C. Section 1692g.” The Notice was presumably served to inform Linda Karp 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 court along with the foreclosure complaint informed Karp that she had 20 days to file a response with the court. Karp sued Shapiro, Fishman & Gache, LLP under the FDCPA alleging that the firm violated the Act because the Notice attached to the state court Complaint was deceptive and misleading to the “least sophisticated consumer.” The lawsuit alleges 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. Karp further alleged that hundreds of other consumers received the identical notice in connection with their mortgage foreclosure lawsuit.
Karp v. Shapiro, Fishman & Gache, LLP, Case Number: 6-14-Civ-Orl-000046-28TB
Surprisingly, many well established law firms have a fundamental misunderstanding of the application of this statutory requirement. A random survey of foreclosure actions filed throughout the State of Florida would reveal that a 1692(g) Validation Notice is routinely attached to mortgage foreclosure complaints. However, a “pleading,” such as a complaint in a lawsuit, can never be an “initial communication” that triggers the notice requirement under 1692(g). Moreover, sending such a notice can be deceptive and misleading to the “least sophisticated consumer.”
A recent case filed in United States District Court in Orlando, Florida, alleges that Shapiro, Fishman & Gache, LLP, acting as counsel for PHH Mortgage Corporation, filed a complaint in Seminole County, Florida, to foreclose on Linda Karp’s mortgage and to enforce a promissory note. Attached to the state court complaint and summons was a document entitled “Notice Required by the FDCPA, 15 U.S.C. Section 1692g.” The Notice was presumably served to inform Linda Karp 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 court along with the foreclosure complaint informed Karp that she had 20 days to file a response with the court. Karp sued Shapiro, Fishman & Gache, LLP under the FDCPA alleging that the firm violated the Act because the Notice attached to the state court Complaint was deceptive and misleading to the “least sophisticated consumer.” The lawsuit alleges 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. Karp further alleged that hundreds of other consumers received the identical notice in connection with their mortgage foreclosure lawsuit.
Karp v. Shapiro, Fishman & Gache, LLP, Case Number: 6-14-Civ-Orl-000046-28TB
Friday, December 27, 2013
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.
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.
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.
Friday, August 30, 2013
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.
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.
Thursday, June 27, 2013
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.]
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