8 of 9 Consumer Finance Race-Based Claims Against Servicer Dismissed In Recent Indiana Federal Court Case

Lesson. In Indiana, it is difficult to defend mortgage foreclosure actions based upon the mere assertion of consumer finance statutory violations. To avoid dismissal of the claims, courts commonly require plaintiffs to articulate specific facts.

Case cite. Sims v. New Penn Financial, 2016 U.S. Dist. LEXIS 155241 (N.D. Ind. 2016) (.pdf).

Legal issue. There were several in Sims. This case was more about procedural (pleading) requirements than anything.

Vital facts. Plaintiffs bought a home on a land contract. Plaintiffs later discovered that the land contract seller had stopped paying the mortgage loan on the home. The seller’s lender filed to foreclose. To avoid a sheriff’s sale, Plaintiffs sought to assume the seller’s loan, but the servicer of the loan refused to do so until Plaintiffs brought the loan current. In response, Plaintiffs filed suit in federal court against the loan servicer. The essential premise upon which Plaintiffs based their claim was that the servicer declined the loan assumption because Plaintiffs were African-American.

Procedural history. The defendant mortgage loan servicer filed a Rule 12(b)(6) motion to dismiss Plaintiffs’ complaint. The Sims opinion outlines Chief Judge Philip Simon’s ruling on the motion.

Key rules. Plaintiffs asserted nine consumer finance-related causes of action. I’ll address five of them here.

  1. Fair Housing Act: A claim under the FHA requires an allegation that the servicer “acted with the intent to discriminate or that its actions had a disparate impact on African Americans.” See generally, 42 U.S.C. 3604.
  2. Indiana Deceptive Consumer Sales Act: The IDCSA, Ind. Code 24-4-0.5, has the purpose of encouraging “the development of fair consumer sales practices … and provides that a “supplier may not commit an unfair, abusive, or deceptive act, omission, or practice in connection with a consumer transaction.”
  3. Fair Debt Collection Practices Act: The FDCPA generally “prohibits a debt collector from using certain enumerated collection methods in its effort to collect a ‘debt’ from a consumer.”
  4. Dodd-Frank Wall Street Reform & Consumer Protection Act: The Court noted that although “there is no doubt that Dodd-Frank creates a private cause of action for whistleblowers, courts have been reluctant to find that Dodd-Frank created any other private cause of action.”
  5. Equal Credit Opportunity Act: The ECOA generally prohibits creditors “from discriminating against ‘applicants’ on the basis of race.” 15 U.S.C. 1691(a). And, “if credit is denied or another ‘adverse action’ is taken,” the ECOA “requires creditors to set out its reasons for the action.” An “applicant” is “any person who requests … an extension of credit … including any person who is or may become contractually liable.” 12 C.F.R. 202.2(e).

Holding. The Court granted the servicer’s motion to dismiss on eight of the nine counts asserted by Plaintiffs. The sole count that survived was the ECOA claim. This did not mean that the servicer was liable under that claim – only that Plaintiffs sufficiently pleaded the action so as to notify the servicer of the allegations “and to make the right to relief under the ECOA more than speculative.”

Policy/rationale.

  1. As to the FHA claim, the Court concluded that Plaintiffs alleged no “facts” to support the “vague” allegation that the servicer hindered Plaintiffs’ “efforts to assume the mortgage, because of their race and color.”
  2. Plaintiffs complained that a letter the servicer sent to Plaintiffs omitted language spelling out that the assumption approval was contingent upon Plaintiffs’ ability to reinstate the loan. The Court reasoned that “there is no plausible IDCSA claim here because the complaint pleads no facts to support the notion that [the servicer’s] omission was ‘unfair, abusive, or deceptive’ in any way.” The servicer’s failure to mention one of many requirements for approval could not “reasonably be viewed as unfair, abusive, or deceptive.”
  3. Regarding the FDCPA count, the Court’s rationale was that Plaintiffs’ complaint did not allege a false or misleading representation prohibited under the Act. Further, Plaintiffs were not “consumers” for purposes of the Act because they were never obligated to pay the contract seller’s debt but instead “could walk away from [his] debt at any point.”
  4. The Court dismissed the Dodd-Frank claim for the simple reason that a so-called “private right of action” [see post below] did not exist in this context.
  5. The ECOA cause of action passed the initial test because Plaintiffs fell under the broad definition of “applicants” requesting an extension of credit. Further, the servicer’s rejection of Plaintiffs’ assumption application theoretically “could constitute an adverse action under the ECOA.” The Court cautioned, however, that “it remains to be seen whether [Plaintiffs] can prove an ECOA violation.” 

Related posts.

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I have represented lenders, as well as their mortgage loan servicers, in connection with consumer finance litigation.  If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenmclaughlin.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.


Seventh Circuit Holds That Proof Of Claim For “Stale” Debt Does Not Violate FDCPA

Lesson. The filing of a bankruptcy proof of claim for a time-barred debt does not violate the Fair Debt Collection Practices Act (FDCPA) in the Seventh Circuit, which includes Indiana.

Case cite. Owens v. LVNV Funding, 832 F.3d 726 (7th Cir. 2016) (pdf).

Legal issue. There were two: (1) whether a “claim” includes only legally-enforceable obligations and (2) whether a creditor’s attempt to collect on a time-barred debt in bankruptcy violates the FDCPA.

Vital facts. Defendant debt collector filed a proof of claim in a Chapter 13 bankruptcy case for a time-barred (“stale”) debt. The plaintiff debtor successfully objected to the claim and then sued the debt collector alleging FDCPA violations.

Procedural history. The district court dismissed the debtor’s action. The debtor appealed to the Seventh Circuit, which issued the opinion addressed here. Please note: the debtor later appealed to the U.S. Supreme Court, which refused to hear the case.

Key rules.

  • A “claim” under the bankruptcy code is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” A claim is not a cause of action.

  • The FDCPA prohibits the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. 1692e.

Holding. The Court first held that a claim on a time-barred debt “does not purport to be anything other than a claim subject to dispute in the bankruptcy case.” Thus a claim can include an unenforceable obligation. Next, the Court concluded that the defendant’s conduct was not deceptive or misleading so as to give rise to FDCPA liability.

Policy/rationale. The Court reasoned that the bankruptcy code contemplates that creditors will “file proofs of claim for unenforceable debts … and that the bankruptcy court will disallow those claims upon debtor’s objection.” The code and interpreting case law recognize that the term “claim” has a broad definition, including a right to payment, and whether the claim ultimately is enforceable is immaterial.

Moreover, the Court articulted that the information contained in the subject proof of claim was not misleading. Indeed, the information about the status of the debt was accurate. Whether the statute of limitations had run was apparent on the face of the proof of claim. Moreover, the debtor’s attorney successfully objected to the proof of claim.

Related posts.

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I frequently represent lenders, as well as their mortgage loan servicers, entangled in loan-related litigation. If you need assistance with such a matter, please call me at 317-639-6151 or email me at john.waller@woodenmclaughlin.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted to your left.


Fair Debt Collection Practices Act Claim Survives Motion To Dismiss

The Stender case discussed in my post last week also dealt with the defendant’s motion for judgment on the pleadings as to the borrowers’ Fair Debt Collection Practices Act (“FDCPA”) claim.  Please review last week’s post for the Stender context. 

Borrower’s theory.  Borrowers alleged that defendant refused to honor a loan modification contract and, as a result, attempted collection in violation of the FDCPA.  Importantly, at issue was a consumer debt, not a commercial one, meaning that the FDCPA potentially applied.  For more on the scope of the FDCPA, please review my posts dated 11/16/06 and 12/18/09.  The FDCPA generally does not apply to commercial foreclosures. 

Creditor/debt collector.  The defendant first argued its mortgage servicer was a “creditor” not a “debt collector” under the FDCPA and thus was exempt from the statute’s provisions.  The Stender opinion explains in detail the distinction between debt collectors and creditors.  Creditors generally are not covered by the FDCPA, while debt collectors are.  The plaintiffs’ response was that the current servicer did not originate the loan and thus as an assignee was not a “creditor” under the FDCPA. 

Timing of loan assignment.  The legal significance of the loan assignment was in the spotlight.  The important facts, according to the Court, were when the plaintiff’s mortgages went into default and when the assignments of the mortgages to the defendants occurred.  See, 15 U.S.C. § 1692a

(6)  The term “debt collector” means any person who . . . regularly collects or attempts to collect, directly or indirectly, debt owed or due or asserted to be owed or due another . . ..  The term does not include-  

    (F)  any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (iii) concerns a debt which was not in default at the time it was obtained by such person.

In other words, if borrowers were in default at the time defendant was assigned the loan, then defendant would be considered a “debt collector” subject to the FDCPA.  If, on the other hand, borrowers were not in default at the time of the assignment, defendant would be a “creditor” exempt from the FDCPA. 

Can kicked.  Given the procedural context of the case (a motion for judgment on the pleadings), the Court deferred that factual determination for summary judgment or trial holding:

[P]laintiffs allege in their complaint that they sought loan modifications in 2009 and 2010.  It is entirely consistent with these allegations for plaintiffs to suggest that they had done so because by that point they had defaulted on their mortgages.  This would have occurred before 2011, when [defendant suggests] the Lowell property was assigned to them.  If plaintiffs’ hypothesis proves correct, and they were in default before the mortgages were assigned to [defendant], then [defendant] would qualify as a “debt collector.”  Put simply, at this time, a set of facts consistent with the plausible allegations of the complaint could establish that [defendant was a] “debt collector” under the FDCPA, so the court cannot dismiss plaintiffs’ FDCPA claim based on [defendant’s] argument. 

Items subject to collection.  The borrowers’ also alleged in Stender that defendant attempted to collect late fees and interest above and beyond what was allowed under the alleged loan modification agreement.  The Court found that the allegations were “sufficient to put defendants on notice of a plausible claim.”  15 U.S.C. § 1692f prohibits “the collection of any amount (including interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”

In Stender, which dealt with residential mortgages, the borrowers’ FDCPA claims survived the defendant’s motion for judgment on the pleadings, a relatively easy burden to overcome.  Whether the claims would survive summary judgment was not addressed. 


Investors Not Protected By FDCPA

In my November 16, 2006 post “Worried About The Fair Debt Collection Practices Act?” I explained that the Fair Debt Collection Practices Act (“FDCPA”) generally does not apply to commercial foreclosures or the collection of business debts.  The recent decision by the Indiana Court of Appeals in Baird v. ASA Collections, 2009 Ind. App. LEXIS 961 (Ind. Ct. App. 2009) (.pdf) supports this conclusion. 

HOA dues.  Plaintiff ASA Collections filed a lawsuit against defendant Baird to recover past-due homeowner’s association fees and dues.  Baird filed a counterclaim against ASA based upon alleged FDCPA violations.  The issue was whether the FDCPA applied to the case.  Since the FDCPA regulates “consumer debts,” which are defined at 15 U.S.C. § 1692(a)(5) as obligations “primarily for personal, family, or household purposes,” one might expect homeowner’s association dues to fall under the FDCPA.  Indeed in Newman v. Boehm, 119 F.3d 477 (7th Cir. 1997), the Seventh Circuit held that the plaintiff’s delinquent condominium dues and assessments constituted “consumer debts” under the FDCPA. 

Investor.  Baird was distinguishable from Newman, however.  Baird had purchased six vacant lots at a tax sale for investment purposes.  Baird sold the lots to purchasers who wanted access to recreational facilities on the property.  Baird never built on the lots, and she did not reside in any structure in the development.  Instead, she bought the properties and sold them to various owners once the land was developed.  Thus Baird’s FDCPA counterclaim failed as a matter of law:

The evidence demonstrated that Baird may be characterized as an investor rather than a consumer in the transaction, and she has failed to show that the dues and fees that were assessed involved a “consumer debt” within the meaning of the FDCPA.

Only consumer debts.  Baird provides additional comfort for lenders and their counsel involved in Indiana commercial foreclosure litigation.  In general, the regulations and pitfalls of the FDCPA should not apply to the collection of an investment-related debt - even if the underlying nature of the debt seems to be personal in nature.  The FDCPA is designed to protect consumers, not investors.


WORRIED ABOUT THE FAIR DEBT COLLECTION PRACTICES ACT?

Do you work for a financial institution that collects debts?  If so, do you know whether the Fair Debt Collection Practices Act, 15 U.S.C. 1692 (the “Act”), regulates what you do?  Do you fear that your collection practices might subject you or your company to liability?  Relax.  The Act generally does not apply to commercial foreclosures or the collection of commercial debts.  (See my 11-1-06 article “Just What Is Commercial Foreclosure Law?” for more background.)

Personal, Family or Household Purposes.  The Act focuses on obligations arising from consumer transactions.  Bass v. Stolper, et al., 111 F.3d 1322 (7th Cir. 1997).   “Debt,” for purposes of the Act, is defined as an obligation to pay money arising out of a transaction that is “primarily for personal, family, or household purposes…” 15 U.S.C. 1692a(5).  A nice article in the American Law Reports Federal explains the concept in detail: “What Constitutes ‘Debt’ for Purposes of Fair Debt Collection?”  159 A.L.R. FED. 121 (2000).  Even individual guarantors of an obligation do not fall within the scope of the Act if the guaranty is part of a commercial transaction.  See the Federal Trade Commission’s website for more discussion.  My practice and blog are dedicated primarily to commercial deals, not consumer loans.  If you’re in the same boat, then essentially all you need to know about the Act is (1) it’s out there, (2) a violation of it is a bad thing, but (3) it generally doesn’t apply to you. 

Behave Appropriately. The legal industry has some very creative attorneys, as well as judges inclined to protect debtors.  There are gray areas in the law.  Legal principles evolve, as can the interpretation of statutes like the Act.   For instance, the ALR article cites a case from Mississippi in which a commercial debt essentially was transformed into a consumer debt covered by the Act when the debt collector made “harsh, abusive, foul, obscene, indecent, uncouth, violent, threatening, intimidating, and harassing” phone calls to the debtor.  So don’t be reckless.  Be mindful of the spirit of the Act, which Congress designed to eliminate abusive, deceptive, and unfair debt collection practices.   

As a general proposition, however, you need not sweat the details of the Act if you’re confident that you’re dealing with a commercial transaction.  When in doubt, however, follow the Act.  Or, contact your lawyer for advice.  In the past few years, there has been plenty of litigation involving the application and enforcement of the Act, so recent case law exists to help you or your lawyer determine whether your actions may be regulated.