Bourff v. Rubin Lublin, LLC

No. 10-14618 (March 15, 2012) [Not Published]
Vacated and Remanded. The Debtor's complaint on its face states a claim upon which relief may be granted under the FDCPA. Unofficial lessons of this case: The FDCPA clearly defines the term "creditor" - any attempt to (i) substitute a more inclusive, "ordinary meaning" of the term, or (ii) argue "harmless error" with respect to a person clearly outside the FDCPA's definition of "creditor" will be unsuccessful.
Procedural context:
Appeal of dismissal by U.S. District Court for the Northern District of Georgia of civil action under Fair Debt Collection Practices Act ("FDCPA") for failure to state a claim.
Debtor ("Bourff") obtained a loan from America's Wholesale Lender ("AWL"). In April 2009 Debtor defaulted on the loan and AWL subsequently assigned the loan and related security deed to BAC Home Loan Servicing, LP ("BAC") for collection. BAC hired the law firm of Rubin Lublin, LLC ("Lublin") to assist with collection efforts. In May 2009 Lublin sent Debtor a notice stating, in relevant part, the notice was an attempt to collect debt pursuant to the FDCPA, and identified BAC as "the creditor on the above-referenced loan." Debtor then filed this action claiming Lublin violated Section 1692e of the FDCPA by falsely representing BAC (the assignee of the debt) as the "creditor" on the loan. Lublin filed a Rule 12(b)(6) motion to dismiss and the action was dismissed for failure to state a claim. In reaching its decision the court concluded that BAC was a "creditor" within the ordinary meaning of the term, and in the alternative, even if BAC was not a creditor the error was harmless as BAC had the power to foreclose on the property. On appeal the Eleventh Circuit held that the assertion that BAC was a "creditor" was a false representation made by a debt collector as defined in section 1692(a) of the FDCPA. The plain language of section 1692(a)(4) specifically excludes"any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt ..." The FDCPA further provides recourse against any debt collector who fails to comply with the provisions of the FDCPA. Section 1692k(a).
Edmondson, Pryor & Bowdre

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