Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

The Telephone Consumer Protection Act prohibits companies from making automated calls to a person’s cellphone without that person’s prior express consent, 47 U.S.C. 227(b)(1)(A)(iii). Hill claims he received more than 100 prohibited phone calls from his creditor, Homeward, in connection to a debt he owed. Hill had given the company his cell number and knew that this number would be used if Homeward needed to reach him about his mortgage. He also listed the number on a loan modification document. While behind on his payments, Hill told Homeward not to call him at work anymore, instructing Homeward to call his cellphone instead. He also provided express written consent for Homeward to call his cellphone. The district court rejected Hills’s claims under the Act. The Sixth Circuit affirmed. A person gives his “prior express consent” when he gives his creditor his cellphone number in connection with a debt he owes. View "Hill v. Homeward Residential, Inc." on Justia Law

The named plaintiffs purchased Align, Procter & Gamble’s probiotic nutritional supplement, and found that the product did not work as advertised—that it did not promote their digestive health. Plaintiffs filed suit, alleging violations of state unfair or deceptive practices statutes because it has not been proven scientifically that Align promotes digestive health for anyone. The district court certified five single-state classes from California, Illinois, Florida, New Hampshire, and North Carolina under FRCP 23(b)(3) comprised of “[a]ll consumers who purchased Align . . . from March 1, 2009, until the date notice is first provided to the Class.” The Sixth Circuit affirmed class certification. The district court did not abuse its discretion in finding the proposed class to be sufficiently ascertainable; there is significant evidence that Plaintiffs could use traditional models and methods to identify class members. View "Rikos v. Procter & Gamble Co." on Justia Law

Bank of America loaned Leipzig $960,000, secured by a deed of trust on a Brentwood, Tennessee residence. Leipzig assigned his rights in the residence to a trust, which leased it to Johannessen in 2010. The lease had a five-year term and an option to buy. Johannessen exercised that option in 2011, but otherwise did not act to obtain title. Leipzig stopped making payments. In 2013, Johannessen assigned his lease and option rights to Anarion; the residence was in foreclosure. Published foreclosure notices stated that Brock was a “substitute trustee” for purposes of the loan “by an instrument duly recorded.” Anarion alleges there was no such “instrument,” and, based on that putative “misrepresentation,” sued under the Fair Debt Collection Practices Act, 15 U.S.C. 1692. The court dismissed, holding that Anarion is not a “person” under the Act, which states that “any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable.” The Sixth Circuit reversed, reasoning that section 1692a(3), defines “consumer” to mean “any natural person,” suggesting that, when Congress meant to refer only to natural persons, it did so expressly. The court noted that its decision does not mean that Anarion can bring suit under the FDCPA. View "Anarion Invs., LLC v. Carrington Mortg. Servs., LLC" on Justia Law

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, targets “independent debt collectors,” but excludes in-house collectors, including “any officer or employee of . . . any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” In Ohio, consumer debts that remain uncollected by a state entity are “certified” to the Attorney General (OAG), which enlists “special counsel” as independent contractors for collections. Actions taken by special counsel are dictated by an agreement, which requires special counsel to comply with FDCPA standards. All collections must be endorsed to the OAG before special counsel is entitled to a fee. Special counsel were orally directed to use OAG letterhead for all collections (including consumer debts, although contrary to Ohio’s code). Plaintiffs filed suit, alleging violation of the FDCPA by use of OAG letterhead. The district court entered summary judgment, holding that special counsel are not “debt collectors” under the FDCPA, and that, even if they were, use of OAG letterhead was not a “false, deceptive or misleading” communication. The Sixth Circuit vacated. A jury could reasonably find that the use of the OAG letterhead by the “special counsel,” in the manner and under the circumstances present here, resulted in letters that were actually confusing to the least sophisticated consumer. View "Gillie v. Law Office of Eric A. Jones, LLC" on Justia Law

American Express sent Wise a credit card and “Agreement.” Wise accepted the offer by using the credit card. The Agreement provides that it is governed by the laws of Utah and provides that, upon default: “You agree to pay all reasonable costs, including reasonable attorneys’ fees, incurred by us.” Wise defaulted on the account, and American Express retained a law firm, which filed suit in Ohio state court. Wise filed for bankruptcy, staying that lawsuit, then filed a putative class action lawsuit against the attorneys, seeking to represent consumers from whom they demanded attorney’s fees. Noting that Ohio law bars contracts that would require payment of attorney’s fees on the collection of consumer debt, Wise alleged violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692,and the Ohio Consumer Sales Practices Act (OCSPA), Ohio Rev. Code 1345.02, 1345.03. The district court applied Utah law and determined that: the case fell outside the scope of the arbitration clause; OCSPA did not apply; Utah law allowed for the collection of attorney’s fees: and there was no FDCPA violation. The Sixth Circuit reversed in part. The pleadings do not resolve which law would govern the attorney’s-fee question. On the state law claim, the court affirmed. View "Wise v. Zwicker & Assocs., PC" on Justia Law

LVNV buys uncollectable debts at a discount and pays Northland Group to collect them. LVNV purchased a debt of Buchanan’s and assigned it to Northland for collection. Northland sent Buchanan a letter, proposing to “settle” the balance of $4,768.43 for a payment of $1,668.96. The letter did not disclose that the Michigan six-year statute of limitations had run on the debt or that a partial payment on a time-barred debt restarts the statute-of-limitations clock under Michigan law. Buchanan alleged that the letter falsely implied that Northland held a legally enforceable obligation. Buchanan filed a purported class action under the Fair Debt Collection Practices Act, 15 U.S.C. 1692–1692p.The district court rejected Buchanan’s discovery request and dismissed, concluding that Northland’s letter was not misleading as a matter of law. The Sixth Circuit reversed, reasoning that the term “settlement” is one of “equivocal meaning” and that an unsophisticated debtor who cannot afford the settlement offer might nevertheless assume from the letter that some payment is better than no payment. View "Buchanan v. Northland Grp., Inc." on Justia Law

In 2004, the plaintiffs’ Rockvale, Tennessee home burned down. They replaced it with a 2180-square-foot, “triple-wide” manufactured home purchased from the defendant for $160,230. Defendant was responsible for “normal delivery and installation” on the plaintiffs’ land and warranted that, “[f]or new homes, installation at the initial homesite will be completed in accordance with applicable governmental requirements.” Defendant delivered and installed the home in March 2005, but only one member of the installation crew was identified. He was not licensed to install manufactured homes as required by T.C. 68-126-404(a). Plaintiffs immediately began noticing defects that suggested the home was not level when installed and notified the defendant before they closed the purchase. Defendant assured plaintiffs that it would repair and level the home. After several years of inspections and repair efforts, defendant never levelled or repaired the home to the plaintiffs’ satisfaction. Plaintiffs sued, claiming breach of contract and federal breach of warranty under15 U.S.C.A. 2304, the Magnuson-Moss Warranty Act, “and/or other applicable law.” The district court held that an arbitration clause was invalid and awarded $39,238.29. The Sixth Circuit remanded, concluding that federal jurisdiction did not exist because the home is not a “consumer product” under the Magnuson-Moss Act. View "Bennett v. CMH Homes, Inc." on Justia Law

After Stratton stopped making payments on her credit card, GE “charged off” Stratton’s $2,630.95 debt, as uncollectible. GE stopped charging Stratton interest. By charging off the debt and ceasing to charge interest GE could take a bad-debt tax deduction, I.R.C. 166(a)(2), and avoid the cost of sending Stratton statements. A year later, GE assigned Stratton’s charged-off debt to PRA, a “debt buyer.” Two years later, PRA filed suit in state court, alleging that Stratton owed interest during the 10 months after GE charged off her debt, before GE sold that debt, and that Stratton owed 8% interest rather than the 21.99% rate established in her contract with GE. The 8% rate is the default rate under Kentucky’s usury statute, KRS 360.010. Stratton filed a putative class action, alleging that PRA’s attempt to collect 8% interest for the 10-month period violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, in that the 8% interest was not “expressly authorized by the agreement creating the debt or permitted by law,” that PRA had falsely represented the “character” of Stratton’s debt and the “amount” owed, and that PRA’s suit was a “threat” to take “action that cannot legally be taken.” The district court dismissed. The Sixth Circuit reversed. Under Kentucky law a party has no right to statutory interest if it has waived the right to collect contractual interest; any attempt to collect statutory interest when it is “not permitted by law” violates the FDCPA. View "Stratton v. Portfolio Recovery Assocs., LLC" on Justia Law

First Resolution Investment Corp. filed a notice of judgment lien against Roslyn Currier's home and maintained it for approximately one month although the judgment it was based on never became final and was vacated. Upon review of the matter, the Sixth Circuit Court of Appeals held that filing and failing to release an invalid judgment lien against a debtor's home while the related state court collection action remained pending fell within the broad scope of practices prohibited by the Fair Debt Collection Practices Act (FDCPA). Because Currier stated a plausible claim under the FDCPA, the Court reversed the dismissal of her claims and remanded the case for further proceedings. View "Currier v. First Resolution Inv. Corp." on Justia Law

The Federal Trade Commission (FTC) filed a complaint alleging that Defendants fraudulently marketed and sold debt-related services, failed to provide those services, and retained money as upfront fees in violation of the FTC Act, 15 U.S.C. 45(a); the Telemarketing Sales Rule, 16 C.F.R. 310; and the Mortgage Assistance Relief Services Rule, 12 C.F.R. 1015. The FTC also sought a temporary restraining order and a preliminary injunction, and provided more than 1,000 pages of exhibits. Defendants sought to stay proceedings, asserting that a criminal investigation had been launched into their business activities, as evidenced by a raid conducted by the Royal Canadian Mounted Police that resulted in seizure of records they claim were necessary to defend against the FTC’s allegations. The district court denied the motion; the FTC and Defendants entered into a stipulated preliminary injunction. Defendants later renewed the motion for a stay, claiming that they were unable to access critical records. Without explanation, the district court denied the motion and later granted the FTC’s motion for summary judgment, ordering Defendants to jointly pay restitution in the amount of $5,706,135.48 to injured consumers. The Sixth circuit affirmed, finding clear evidence of the violations. View "Fed. Trade Comm'n v. E.M.A. Nationwide, Inc." on Justia Law