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In re Myron Hale

Summarizing by Joel Newell

Shoup v. McCurdy & Candler, LLC

Case No. 10-14619 (11th Cir. Mar. 30, 2012) (unpublished) (per curiam).
The Eleventh Circuit reversed the district court's dismissal of a complaint alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e, because plaintiff's allegation that Mortgage Electronic Registration System (MERS), the client which was the subject of a debt collection letter, was not a creditor as identified in the letter stated a plausible claim for which relief could be granted.
Procedural context:
The matter on appeal before the Eleventh Circuit was an order of the district court granting defendant's motion to dismiss a complaint brought under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e.
Ms. Shoup alleged that McCurdy & Candler, LLC, a law firm, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e, because the firm's initial communication which arose from Ms. Shoup's default on her home mortgage, stated that the firm's client, Mortgage Electronic Registration System (MERS), was Ms. Shoup's "creditor." The mortgage contract which Ms. Shoup had defaulted on was entered by and between Ms. Shoup and America Wholesale Lender (AWL), but described MERS as the "grantee under" the contract and as "a separate corporation that is acting solely as a nominee for Lender [AWL] and Lender's successors and assigns." In her complaint, Ms. Shoup alleged that MERS was not a "creditor" because it did not offer or extend credit to her and she did not owe MERS a debt. McCurdy & Candler, LLC filed a Rule 12(b)(6) motion to dismiss which the district court granted, finding that MERS was a creditor and, if not, identification of MERS as a creditor was harmless. On appeal, the Eleventh Circuit affirmed, explaining that its decision was controlled by a prior case in which it held that the plaintiff's allegation that a loan servicer was not a creditor as identified in the initial communication from the servicer's counsel stated a plausible claim for relief. Bourff v. Lublin, Case No. 10-14618 (11th Cir. Mar. 15, 2012). The Eleventh Circuit rejected the district court's alternative holding that the error complained of was "harmless," explaining that the Fair Debt Collection Practices Act provides a claim for statutory damages based on any violation of the statute.
Chief Judge Dubina, Circut Judge Carnes, and District Court Judfe J. Owen Forrester (N.D. Ga.), sitting by designation.

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