About Dean Kanellis

Judge Lacked Authority to Transfer Cases to Himself

Appellants were entitled to writs of mandamus and prohibition against appellee judge, as the judge lacked authority to transfer cases to himself from the other judges to whom the cases had originally been assigned or to consolidate the cases for purposes of trial because he was not an administrative judge with power to control the docket under Sup.R. 4.01(A), he did not have the lowest numbered case as required by Hamilton County, Ohio, Ct. C.P. R. 7(G), and at the time in question, Civ.R. 42(A) allowed consolidation only after a hearing. State ex rel. Durrani v. Ruehlman, 2016-Ohio-7740.

Another Court Rules That Voice-Mail Message Does Not Violate FDCPA

voicemailThe U.S. District Court for the Eastern District of New York recently decided that a debt collector did not violate the FDCPA by leaving a voicemail message containing the caller’s name and identifying the caller as a debt collector with an important message. Zweigenhaft v. Receivables Performance Management, LLC. The court reached this conclusion because it determined that, under the circumstances, the voice-mail message was not a “communication” under the FDCPA.

Arguably, this decision conflicts with Foti v. NCO Fin. Sys., Inc., No. 04-CV-707 (S.D.N.Y. Mar. 25, 2006) and its precedential value is limited. The decision is noteworthy, however, because the court observed that even though the “FDCPA is clearly out of touch with modern technology,” in light of the overall purpose of the FDCPA to protect consumers from abusive debt collection practices, without placing unnecessary restrictions on debt collectors, no violation occurred.

Robo-Signing Allegations Must Be Timely Raised in Foreclosure Case or They’re Waived

Robo-signingLast summer, in GMAC v. Coleff, the Eight District Court of Appeals decided another case involving robo-signing claims made by the borrower. Apart from providing a well written summary of the necessary elements of a Rule 60(B) motion, the decision reaffirms the proposition that claims suggesting that a lender relied on fabricated evidence to establish standing must be raised as a defense to the underlying foreclosure, and not in a Rule 60(B)(3) motion. Continue reading

Case Update: Foreclosure Plaintiff Failed to Satisfy Conditions Precedent to Acceleration

Foreclosure NoticeThe Sixth District of the Ohio Court of Appeals held that although the mortgagee in a foreclosure action had established that it was the holder of the note, it failed to offer any evidence from which the court could find that it had satisfied all conditions precedent to acceleration of the balance due, and thus, summary judgment was erroneously entered. Judgment reversed.

The Sixth District did, however, accept the legal proposition that “possession of [the] original note by [the] servicing agent, not plaintiff-bank, did not deprive the bank of status as holder.”

U.S. Bank, N.A. v. Zokle, 2014-Ohio-636 (6th Dist. Ct. App.)

 

Texas Court Holds that the FDCPA Does Not Require Debt Collectors to Read Minds

In determining whether the consumer effectively notified the debt collector that she did not want to receive calls at work, “[t]he question is not what [the consumer] thought she was communicating to [the debt collector] … [r]ather, the question is what [the debt collector] knew or should have known regarding [her employer’s] policy regarding permitting employees to receive calls at work.” Karp v. Financial Recovery Servcs., Inc., United States District Court, Western District of Texas, Case No. A-12-CA-985 LY (December 18, 2013).

House Bill Would Exempt Collection Attorneys Engaged In Litigation From The FDCPA

A bill that was recently introduced in the House of Representatives would exempt debt collection attorneys from the Fair Debt Collection Practices Act (FDCPA) “when taking certain actions.” The Bill, which was introduced by Rep. Ed Perlmutter (D-Colo.) and co-sponsored by Rep. Spencer Bachus (R-Ala.), is described as a technical fix that does not erode the consumer protections afforded by the FDCPA. Continue reading