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House Bill 1979

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PACBA Article re Filings Under New AOPC Filing 1-6-2018

CASE LAW

Consumer Fin. Prot. Bureau v. Weltman, Weinberg & Reis Co., L.P.A.

Tepper v. Amos Fin., LLC
3^rd Circuit published opinion came out regarding the definition of debt collectors

Commonwealth Financial Systems, Inc. v. Reeping, 288 CIVIL 2009 (C.P. Somerset 2007) “under Rule 1019, a complaint does not need to “include the amounts of the charges that are part of the claim, the dates of the charges, credits for payments if any, dates and amounts of interest charges, and dates and amounts of other charges” because the alleged debtor can “answer intelligently and determine what items he can admit and what he must contest” regardless. (quoting Worldwide Asset Purchasing v. Stern, 173 P.L.J. 111, 112 (C.P. Allegheny 2004) and Capital One Bank v. Clevenstine, 7 Pa. D. & C. 5^th 153, 154 (C.P. Centre 2009)

Portfolio Recovery Associates, LLC V. May, CI-16-05062 (C.P Lancaster 2017) Portfolio Recovery Associates, LLC V. May, CI-16-05062 (Lancaster County). Court held “while plaintiff has not provided all of the account statements associated with the account at issue and has not provided any statement starting with a zero balance such that it is possible to examine all of the charges alleged to be due on the account, the statement provided are sufficient to put defendant on notice of the claim”.  Id at 4.  The court further noted that “Ultimately, Plaintiff’s failure to provide all of the account statement or to provide statements that make it possible to determine the amount claimed due could have a bearing on plaintiff’s ability to prevail at trial.

Worldwide Asset Purchasing v. Stern, 173 P.L.J. 111, 112 (C.P. Allegheny 2004) Under Rule 1019, a complaint must include the amounts of the charges that are part of the claim, the dates of the charges, credits for payments, if any dates and amounts of interest charges, and dates and amount of other charges. The complaint should contain sufficient documentation and allegations to permit a defendant to calculate the amount of damages to permit a defendant to calculate the amount of damages that are allegedly due by reading the document attached to the complaint

Portfolio Recovery Associates, LLC V. Guerndt 2013-995-CD (C.P Clearfield 2013) Court held citing 1019 (i): When a claim is based upon a writing the documents need to be attached to the complaint that set forth the terms and conditions of the contract. If Plaintiff cannot produce such a document, then Plaintiff needs to set forth the material parts thereof, and explain why the original (or copy) of the card holder agreement is not available. Plaintiff’s Second Amended Complaint does aver that the attached agreement is an “exemplar,” but does not state, nor does it provide any indication , that the “exemplar” agreement contains the same terms and conditions (i.e. payment obligations, interest rates, methods of calculating interest, billing cycles, etc) that were included in the original, signed card holder agreement allegedly entered into by the Defendant. Without stating what the exact terms of a contract are, Rule of Civil Procedure 1019(i) would be meaningless. The card holder agreement entered into by a debtor and creditor must clearly define the parties duties and obligations

FDCPA Related Cases

Third Circuit rejects the argument that formal pleadings cannot be the basis of an FDCPA claim:
Kaymark v. Bank of America NA, 783 F.3d 168 (3d Cir. 2015)

Eastern District about venue provision from FDCPA regarding signing a contract online:
St. Pierre v. Retrieval-Masters Creditors Bureau, Inc.

“Tax Consequences" in Collection Letters:
Schultz v. Midland Credit Mgmt. 2018 U.S. App “While we recognize that Midland, like many debt collection companies, uses form letters when contacting its debtors, we must reinforce that convenience does not excuse a potential violation of the FDCPA.”

TIPS FOR ATTORNEYS

Problems with Envelopes

• Debt collectors should never use window (or glassine) envelopes to mail any written communication to a debtor. See Douglass v. Convergent Outsourcing, 765 F.3d 299 (2014) which held that “disclosure of the plaintiff’s account number implicated a core concern animating the FDCPA – the invasion of privacy” Douglass at 302. In Douglass, the Third Circuit bypassed the “benign” language exception set forth in Section 1692f (8) of the FDCPA and ruled that disclosure of the account number was not “benign” because the ac-count number was information capable of identifying the plaintiff as a debtor.
  
  

• Relying on the holding in the Douglass opinion, U.S. District Judge William J. Nealon of the Middle District of Pennsylvania concluded on July 15, 2015 that embedding an account number in a bar code on an envelope addressed to a debtor is equally problematic given the advent of smartphone bar-code readers. See Styer v. Professional Medical Management , Civil Action No. 3:14-CV-2304 (M.D. Pa 2015) finding that disclosure of a quick response (QR) code on a debt collection envelope that revealed a consumer’s name, address, and account number when electronically scanned rises to the level of an FDCPA violation.
  
  

• Judge Nealon further ruled that an envelope containing a glassine window through which the return address and a barcode printed directly below that address was visible also violates the FDCPA, relying on the Third Circuit’s holding in the Douglass opinion. See Lisa Kostik v. ARS National Services, Inc., Civil Action No. 3:14-CV-2466 (M.D. Pa 2015). The District Court ignored the debt collector’s argument that the envelope did not violate the FDCPA because the barcode was a “benign symbol.”