Consumer Bankruptcy Journal Summer 2015 - Page 43

Debt Collection Practices Act They include: 1. The consumer has suffered no injury or damages and therefore lacks standing to bring the FDCPA claim. 2. The consumer has not objected to the proof of claim in the bankruptcy court (if applicable). 3. The proof of claim was directed at the bankruptcy estate, not at the consumer. 4. The consumer was represented by an attorney in the bankruptcy case; therefore, 5. 6. 7. 8. National Association of Consumer Bankruptcy Attorneys a more sophisticated standard of review applies. The filing of a proof of claim is not a debt collection activity. Subjecting the filing of proofs of claim to the FDCPA undermines the primacy of the bankruptcy court’s jurisdiction in addressing the claims of a debtor. The debt remained valid, even if the debt buyer could not sue on it. The debtor is further protected by the trustee, who has an obligation to review proofs of Summer 2015 claim and object to any that are invalid. 9. Nothing about the proof of claim itself is false or misleading. Our firm has filed a notice of appeal in the Owens case, so this issue is now before the Seventh Circuit Court of Appeals on f acts very similar to those in the Eleventh Circuit’s Crawford opinion. We look forward to the developments to come in this interesting intersection of bankruptcy law and consumer rights litigation. CONSUMER BANKRUPTCY JOURNAL 43