It might have to do with a mortgage, which is something we do not normally address when it comes to the Fair Debt Collection Practices Act, but a ruling from the Eleventh Circuit Court of Appeals seemed interesting because it dealt with assumptions for how long it took a communication from a debt collector to reach the recipient, and because the Appeals Court overturned a lower court’s dismissal of the suit.
A copy of the ruling in the case of Owens-Benniefield v. BSI Financial Services, can be accessed by clicking here.
The plaintiff filed suit, alleging violations of a number of statutes, including several provisions of the FDCPA as well as the Florida Consumer Collection Practices Act, the Florida Deceptive and Unfair Trade Practices Act, and the Florida Mortgage Brokerage and Lending Laws. The plaintiff appealed after a District Court judge granted a motion to dismiss by concluding that a 1099-A notice she received from the defendant was not an attempt to collect a debt under the FDCPA and that her claim was time-barred under the FDCPA. But the Appeals Court ruled that the lower court made an error when it determined the claim was time-barred, largely because of how it determined how long it took the collection notice to reach the defendant.
While agreeing with the lower court that the 1099-A form she received did not constitute a communication within the confines of the FDCPA, the Appeals Court did disagree about whether the claim was time-barred.
The Eleventh Circuit had previously determined that the one-year statute of limitations under the FDCPA starts running from the date the communication was mailed. But the date of mailing is excluded from the calculation. In other cases, the Eleventh Circuit has applied a presumption that it takes three days for a letter to be received when the date of receipt is in dispute. But the court pointed out “we have never held that, when the date of mailing is in dispute and a plaintiff alleges receipt of a letter on a certain date, a court could presume a mailing date based on the date of receipt and the parties’ addresses.”
The plaintiff’s amended complaint alleged the statement she received was dated February 20, 2017 and that she received it on February 28, 2017. As the Eleventh Circuit noted:
“The district court did not rely on any legal authority supporting the application of a three-day mailing rule (or any similar rule) when it presumed that, based on [the plaintiff’s] allegation that she received the February mortgage statement on February 28, 2017, the latest the statement could have been mailed was February 26, 2017. Further, [the plaintiff] was not required to negate the affirmative defense that her FDCPA claim as to the mortgage statement was time- barred. Therefore, the district court erred in dismissing [the plaintiff’s] FDCPA claims as untimely when her complaint did not allege a date of mailing of the February mortgage statement, and it was not apparent from the face of her complaint whether her claim was time-barred.”
It might have to do with a mortgage, which is something we do not normally address when it comes to the Fair Debt Collection Practices Act, but a ruling from the Eleventh Circuit Court of Appeals seemed interesting because it dealt with assumptions for how long it took a communication from a debt collector to reach the recipient, and because the Appeals Court overturned a lower court’s dismissal of the suit.
A copy of the ruling in the case of Owens-Benniefield v. BSI Financial Services, can be accessed by clicking here.
The plaintiff filed suit, alleging violations of a number of statutes, including several provisions of the FDCPA as well as the Florida Consumer Collection Practices Act, the Florida Deceptive and Unfair Trade Practices Act, and the Florida Mortgage Brokerage and Lending Laws. The plaintiff appealed after a District Court judge granted a motion to dismiss by concluding that a 1099-A notice she received from the defendant was not an attempt to collect a debt under the FDCPA and that her claim was time-barred under the FDCPA. But the Appeals Court ruled that the lower court made an error when it determined the claim was time-barred, largely because of how it determined how long it took the collection notice to reach the defendant.
While agreeing with the lower court that the 1099-A form she received did not constitute a communication within the confines of the FDCPA, the Appeals Court did disagree about whether the claim was time-barred.
The Eleventh Circuit had previously determined that the one-year statute of limitations under the FDCPA starts running from the date the communication was mailed. But the date of mailing is excluded from the calculation. In other cases, the Eleventh Circuit has applied a presumption that it takes three days for a letter to be received when the date of receipt is in dispute. But the court pointed out “we have never held that, when the date of mailing is in dispute and a plaintiff alleges receipt of a letter on a certain date, a court could presume a mailing date based on the date of receipt and the parties’ addresses.”
The plaintiff’s amended complaint alleged the statement she received was dated February 20, 2017 and that she received it on February 28, 2017. As the Eleventh Circuit noted:
“The district court did not rely on any legal authority supporting the application of a three-day mailing rule (or any similar rule) when it presumed that, based on [the plaintiff’s] allegation that she received the February mortgage statement on February 28, 2017, the latest the statement could have been mailed was February 26, 2017. Further, [the plaintiff] was not required to negate the affirmative defense that her FDCPA claim as to the mortgage statement was time- barred. Therefore, the district court erred in dismissing [the plaintiff’s] FDCPA claims as untimely when her complaint did not allege a date of mailing of the February mortgage statement, and it was not apparent from the face of her complaint whether her claim was time-barred.”
