The Eighth Circuit held that because of protections offered by the Bankruptcy Code, a debtor cannot file a separate action for violation of the FDCPA when a debt collector files a proof of claim for a stale debt. Nelson v. Midland Credit Management, Inc., No.15-2984 (8th Cir. July 11, 2016).
Tag Archive: Proof of Claim
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Eighth Circuit Lets the Fox in the Henhouse
Posted by NCBRC - August 9th, 2016
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POC for Time-Barred Debt May Violate FDCPA
Posted by NCBRC - December 16th, 2015
The Bankruptcy Court for the Northern District of Illinois added to its body of law finding that a debt collector may violate the FDCPA by filing a proof of claim for a time-barred debt. Davenport v. Calvary Investments (In re Davenport), No. 14-30261, Adv. Pro. 15-559 (Bankr. N.D. Ill. Dec. 14, 2015). Read More
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POC for Stale Debt May Be FDCPA Violation
Posted by NCBRC - October 9th, 2015
Filing a proof of claim for a time-barred debt may constitute an FDCPA violation. Edwards v. LVNV Funding (In re Edwards), No. 14-13263 (Bankr. N.D. Ill. Oct. 6, 2015). Read More
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Broken Chain of Title and Disallowed Claims
Posted by NCBRC - September 7th, 2015
A debt-buyer was out of luck when he could not establish the chain of title between himself and the original lender. Marx v. DeConne (In re DeConne), No. 15-175 (S.D. N.Y. Sept. 2, 2015). Read More
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Eighth Circuit BAP Gets it Wrong in FDCPA Case
Posted by NCBRC - July 20th, 2015
Filing an accurate proof of claim on a stale debt does not violate the FDCPA. Gatewood v. CP Medical, LLC, No. 15-6008 (B.A.P. 8th Cir. July 10, 2015). Mr. and Mrs. Gatewood filed for chapter 13 bankruptcy and CP Medical, a medical collection agency, filed a proof of claim on a debt that was time-barred under Arkansas law. After the Gatewoods converted to chapter 7, they filed an adversary complaint against CP Medical for seeking payment on a stale debt “as a means of debt collection that is either false, misleading, deceptive, unfair, or unconscionable” in violation of the FDCPA.
The bankruptcy court, relying on Eighth Circuit precedent, found that an attempt to collect on a stale debt is not a violation of the FDCPA. It further found that the Bankruptcy Code provides the only relief available to a debtor in cases such as these. The BAP affirmed. Read More
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Debtor Takes Road Less Traveled to POC Challenge and Hits Dead End
Posted by NCBRC - July 2nd, 2015
Evidence that would be inadmissible hearsay in state court satisfied Bankruptcy Rule 3001 for purposes of establishing the validity of the debt buyer’s proofs of claim. Walston v. PYOD, LLC, No. 14-14593 (11th Cir. June 2, 2015). Read More
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One of Three Illinois Cases Gets it Right in FDCPA Case
Posted by NCBRC - June 19th, 2015
Three cases out of the Northern District of Illinois address the issue of whether filing a proof of claim in chapter 13 bankruptcy for a stale debt can be the basis for a FDCPA claim. In Murff v. LVNV Funding (In re Murff), No. 13-44431, Adv. Proc. 14-790 (Bankr. N.D. Ill. June 15, 2015) and LaGrone v. LVNV Funding (In re LaGrone), 525 B.R. 419 (Bankr. N.D. Ill. Jan. 21, 2015), the courts essentially found the element of deception for a FDCPA violation is not present in the context of a bankruptcy case. In Avalos v. LVNV Funding (In re Avalos), No. 13-40865, Adv. Proc. 15-91(Bankr. N.D. Ill. June 12, 2015), Judge Schmetterer found that the determination of whether debt-collector conduct is deceptive is an issue of fact to be addressed on a case-by-case basis. Read More
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Proof-of-Claim Deadline Applies to Secured and Unsecured Alike
Posted by NCBRC - May 15th, 2015
“The deadline for filing a proof of claim in Federal Rule of Bankruptcy Procedure 3002(c) applies to all claims, including those of secured creditors.” In re Pajian, No.14-2052 (7th Cir. May 11, 2015). Read More
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Ocwen Stuck with Debtor’s Proof of Claim for $1
Posted by NCBRC - March 6th, 2015
Relying on equitable principles, the court declined to allow Ocwen’s late-filed proof of claim after the debtor filed a proof of claim on its behalf in the amount of $1. In re Egan, No. 14-36831, __ B.R. __ (Bankr. S.D. N.Y. March 2, 2015). Read More
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Court Turns Jaundiced Eye on Wells Fargo Robo-Mischief
Posted by NCBRC - January 31st, 2015
Wells Fargo lacked standing to assert a claim pursuant to a Note secured by a Deed of Trust, where a forged indorsement in blank did not give it “holder” status under applicable Texas law. In re Franklin, No. 10‐20010 (Bankr. S.D. N.Y. Jan. 29, 2015). Read More
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