In Hinkle v. Midland Credit Management, Inc., 2016 WL 3672112 (11th Cir. July 11, 2016), the Eleventh Circuit, addressing an issue of first impression, reversed summary judgment in favor of a credit data furnisher—a “down-the-line” buyer of charged-off debt—which had not requested or reviewed underlying account information after receiving a dispute from a consumer reporting…
Year: 2016
Failure of Proof of Online Consumer Arbitration Agreement
Does an arbitration agreement included in a credit cardholder agreement cover claims made under the Fair Debt Collection Practices Act arising from collection of resulting credit card debt? In the Eleventh Circuit’s July 5, 2016 decision in Bazemore v. Jefferson Capital Systems, LLC, 2016 WL 3608961, the district court had held that the collection claim,…
Supreme Court Scorecard
The Eleventh Circuit posted a 0‑3 record in the Supreme Court during the recently concluded 2015 Term, according to the Circuit Scorecard in SCOTUSblog.com’s “Stat Pack.” Achieving a winning record in the Court is no mean feat; 67% of all cases were reversed during the 2015 Term, which falls within the usual reversal-rate range. Only…
Eleventh Circuit Holds That Bankruptcy Rules Apply to Adversary Proceedings in District Court, Orders Reinstatement of $6-Million Verdict on Procedural Grounds
When a federal district court oversees adversary bankruptcy proceedings, is the post-trial deadline to request judgment as a matter of law governed by Federal Rule of Civil Procedure 50(b), which allows 28 days to file such a motion—or by Bankruptcy Rule 9015(c), which allows only 14 days? The Eleventh Circuit applied the Bankruptcy Rules’ shorter…
Eleventh Circuit Limits SEC’s Claims for Declaratory Judgment and Disgorgement to Five-Year Statute of Limitations
Unless otherwise provided by law, 28 U.S.C. § 2462 ordinarily requires the government to bring any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture” within five years of the claim’s accrual. In SEC v. Graham, 2016 WL 3033605 (11th Cir. May 26, 2016), the Eleventh Circuit held that this statute of…
Collateral Challenge to Constitutionality of SEC Administrative Procedure to be Dismissed for Lack of Jurisdiction
On June 17, the Eleventh Circuit decided Hill v. SEC, 825 F.3d 1236 (11th Cir. 2016), vacating the district court’s grant of two motions for preliminary injunctions prohibiting the Securities and Exchange Commission’s (SEC) administrative enforcement proceedings. The Eleventh Circuit consolidated two cases where the plaintiffs had each challenged the SEC administrative procedure on grounds, among others,…
Filing Proof of Stale Claim in Chapter 13 Bankruptcy Held to Violate FDCPA
In the consolidated appeals of Johnson v. Midland Funding, LLC and Brock v. Resurgent Capital Services, L.P., Nos. 15-11240 and 15-14116, 2016 WL 2996372 (11th Cir. May 24, 2016), the Eleventh Circuit doubled down on its previous holding that filing “a proof of claim to collect a stale debt in Chapter 13 bankruptcy violates the…
Class Certification of Florida Deceptive and Unfair Trade Practices Act Claim Affirmed
On May 17, the Eleventh Circuit decided Carriuolo v. General Motors Co., 2016 WL 2870025 (11th Cir. May 17, 2016), affirming the district court’s partial grant of a motion for class certification. The plaintiffs’ motion in the district court involved four classes relating to four claims, but the district court denied certification of three and only granted…
Waiver of the Right to Arbitrate Federal Claim Does Not Extend to Later-Asserted State-Law Claims
On April 21, the Eleventh Circuit decided Collado v. J. & G. Transport, Inc., 820 F.3d 1256 (11th Cir. 2016), holding that a defendant’s waiver through litigation of the right to arbitrate claims under the Fair Labor Standards Act (FLSA) did not extend to state-law claims asserted by a later amendment to the complaint. Enrique Collado,…
FDCPA “Initial Communications With Consumers”: A Communication to the Consumer’s Attorney Counts, and the Requirement that Disputes be “In Writing” Must Be Included
In Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268 (11th Cir. 2016), the Eleventh Circuit, addressing three issues of first impression, held that (1) a collection notice sent to a debtor’s attorney was a “communication with a consumer” within the meaning of § 1692g of the Fair Debt Collection Practices Act (“FDCPA”); (2)…