25
Jul

Supreme Court to Consider Non-Judicial Foreclosure and the FDCPA

Published by Loan Lawyers

The Fair Debt Collection Practices Act, known more commonly as the FDCPA, is an important consumer-protection law and one that our office has used many, many times to help our clients and protect their rights.  While it bans a number of specific activities by debt collections, generally, the FDCPA forbids debt-collectors from harassing members of the public to an excessive degree.  Being impolite or mildly rude or pushy is not covered by the FDCPA. The FDCPA covers more severe harassment such as:

  • lying to consumers
  • charging unlawful collection fees
  • threatening violence
  • the use of vulgarity language
  • Other more extreme actions

While awards of damages under the FDCPA may be affected based on whether debt-collector’s conduct was intentional or not, liability is never in question. The FDCPA is known as a “strict liability” law which means that it does not matter if what they did was intentional or a not.

The FDCPA and Non-Judicial Foreclosures

The Supreme Court has recently agreed to hear a case to determine if the FDCPA applies to conduct occurring in non-judicial foreclosures.

What does that mean?

Foreclosures generally occur in two ways in the country, judicial foreclosure states, and non-judicial foreclosure states.  Unfortunately, much of the country practices non-judicial foreclosures, which means that a creditor can take someone’s home without an actual court proceeding.

A Colorado court held that because a non-judicial foreclosure did not involve obligations to pay and was merely about obtaining the property, that misconduct related to it was not covered by the FDCPA.  The Tenth Circuit Court of Appeals maintained that holding, agreeing with the Ninth Circuit.  The Third, Fourth and Sixth circuits all disagreed with that position and believed that the conduct by a debt collector during a non-judicial foreclosure was covered by the FDCPA. When multiple Circuit Courts disagree, a “circuit split” occurs and the Supreme Court can rule upon such.  While the Supreme Court has concluded for this session, it is likely to rule on this issue later in the year.

Contact Loan Lawyers Today

At Loan Lawyers, we have provided foreclosure defense in Fort Lauderdale and throughout South Florida for years. We have helped thousands of homeowners and have saved thousands of homes from foreclosure. Contact us today for a free consultation to see how we may be able to help you.