1. CONSUMER FINANCE LITIGATION Recent Developments and Trends 2012 NCHELP Winter Legal Meeting January 20, 2012 New Orleans, Louisiana Kent A. Lambert Baker Donelson Bearman Caldwell & Berkowitz PC 201 St. Charles Avenue Suite 3600 New Orleans, LA 70170 504.566.5252 klambert@bakerdonelson.com

2. FAIR DEBT COLLECTION PRACTICES FDCPAs Venue Provision [15 U.S.C. § 1692(a)(2)(B)] Hess v. Cohen & Slamowitz, 637 F,3d 117 (2nd Cir. 2011) provision construed in accordance with state laws governing structure of its courts filing suit in incorrect state court creates liability EVEN WHERE BASED ON LIMITATIONS AS TO JURISDICTION, SO LONG AS TIED TO DEFENDANTS RESIDENCE selecting wrong city court within a particular county … EVEN WHERE STATE LAW ALLOWS FOR TRANSFER OR RE-FILING

3. FAIR DEBT COLLECTION PRACTICES Conduct within Collection Suits Grdn v. Leiken, Ingber & Winter PC, 643 F.3d 169 (6th Cir. 2001) Document attached to complaint that could be interpreted by defendant as indicating it was already in default held actionable as false, misleading, or deceptive practice Least Sophisticated Consumer standard

4. FAIR DEBT COLLECTION PRACTICES Conduct within Collection Suits McCullough v. Johnson, Rodenbury & Lavinger, 637 F.3d 939 (9th Cir. 2011) Propounding admission requests in collection suit seeking admission collector knew or reasonably should have known were untrue actionable under FDCPA

5. FAIR DEBT COLLECTION PRACTICES Conduct within Collection Suits McCullough v. Johnson, Rodenbury & Lavinger, 637 F.3d 939 (9th Cir. 2011) Demand for attorneys fees where not authorized by applicable law or contract is violation of FDCPA imposes standard of care greater than that applicable under F.R.C.P. 11 and analogous state law provisions

6. FAIR DEBT COLLECTION PRACTICES Pursuit of Time-Barred Debt McCullough v. Johnson, Rodenbury & Lavinger, 637 F.3d 939 (9th Cir. 2011) Collection suit filed on debt rendered uncollectible under applicable statute of limitations violates FDCPA Bona Fide Error Defense …?

7. FAIR DEBT COLLECTION PRACTICES Pursuit of Time-Barred Debt Huertas v. Galaxy Asset Management, 641 F.3d 28 (3rd Cir. 2011) Where collection does not threaten or initiate suit, seeking to collect on time-barred debt not actionable Least Sophisticated Consumer standard Defense versus Extinguishment

8. FAIR DEBT COLLECTION PRACTICES Obtaining Debtors Credit Report Huertas v. Galaxy Asset Management, 641 F.3d 28 (3rd Cir. 2011) No FDCPA violation for obtaining debtors credit report to assist with collection [15 U.S.C. § 1681b(a)(3)] collection of account originated by way of a credit transaction

9. FAIR DEBT COLLECTION PRACTICES Communications with Debtor Tinsley v. Integrity Financial Partners, 643 F.3d 416 (7th Cir. 2011) Rejected contention that contacting debtors attorney to try to collect on disputed claim violated FDCPA consumer debtors attorney avoid discouraging pre-suit settlements

10. FAIR DEBT COLLECTION PRACTICES Communications with Debtor Grdn v. Leiken, Ingber & Winters PC, 643 F.3d 169 (6th Cir. 2011) Providing inaccurate information about debt in response to direct inquiry from debtor may not be actionable under FDCPA ministerial response to debtors inquiry versus in connection with collection of any debt

11. FAIR DEBT COLLECTION PRACTICES Evidence of Conduct Concerning Other Debtors McCullough v. Johnson, Rodenbury & Lavinger, 637 F.3d 939 (9th Cir. 2011) 9th Circuit upheld admission of testimony from other debtors concerning defendants collection practices intent rebut bona fide error defense punitive damages

12. FAIR DEBT COLLECTION PRACTICES Remedies McCullough v. Johnson, Rodenbury & Lavinger, 637 F.3d 939 (9th Cir. 2011) * $ 3.816.80 credit card debt (plus $5,536.81 in interest) $1,000 in statutory damages … and $250,000 for emotional distress PLUS $60,000 in punitive damages

13. FAIR DEBT COLLECTION PRACTICES Consumer Includes Non-Debt or Contacted in Error Dunham v. Portfolio Recovery Assoc., LLC, 663 F.3d 997 (8th Cir. 2011) Consumer in FDCPA is any person obligated or allegedly obligated to pay any debt Allegedly obligated includes persons contacted in mistaken belief they are a debtor

14. FAIR DEBT COLLECTION PRACTICES When Is a Request an FDCPA Communication Marx v. General Revenue Corp., ____ F.3d ____, 2011 WL 6396478 (10th Cir. 2011) Inquiry to employer regarding debtors employment did not state in connection with a debt no evidence employer believed it was sent as part of collection effort

15. FAIR CREDIT REPORTING Preemption of State Law Claims For Furnishing Inaccurate Information 15 U.S.C. § 1681t(b)(1)(F) bars state statutory and common law claims related to furnishing information to CRAs no conflict with 15 U.S.C. § 1681h(e) no exception for claims alleging malice or willful intent to injure Purcell v. Bank of America, 659 F.3d 622 (7th Cir. 2011) MacPherson v. JPMorgan Chase Bank NA,, 2011 WL 6450777 (2nd Cir. Dec. 23, 2011) Ross v. FDIC, 625 F.3d 808 (4th Cir. 2010)

16. TRUTH IN LENDING Undercutting Signed Acknowledgements Marr v. Bank of America, 662 F.3d 963 (7th Cir. 2011) Uncorroborated affidavit contradicting signed written acknowledgment sufficient to rebut presumption and defeat summary judgment

17. TRUTH IN LENDING Undercutting Signed Acknowledgements Balderas c. Countrywide Bank, N.A., ____ F.3d ____, 2011 WL 6824977 (9th Cir. Dec. 29, 2011) allegations contradicting provisions in signed written acknowledgment of receipt sufficient to defeat motion to dismiss rebuttable presumption created by signed acknowledgment can be overcome by contrary allegations of fact

18. PROCEDURE - CLASS ACTIONS Circuit Split Over Effect of Pre-Certification Offer of Judgment Damasco v. Clearwire Corp., 663 F.3d 891 (7th Cir. 2011) 7th Circuit refuses to follow four other circuits Holds pre-certification offer of judgment providing all relief sought by consumer asserting putative class action based on violations of Telephone Consumer Protection Act mooted class demands Rejects buy-off theory adopted by four other circuits

19. TRUTH IN LENDING Standing Guerpo v. Amresco, 13 Fed. Appx. 649 (9th Cir. 2011) TILA rescission claim brought by debtor after filing for bankruptcy protection dismissed for lack of standing cause of action existing before bankruptcy becomes property of estate

20. Kent A. Lambert Baker Donelson Bearman Caldwell & Berkowitz PC 201 St. Charles Avenue, Suite 3600 New Orleans, Louisiana 70170 504.566.5252 klambert@bakerdonelson.com