One of the attorneys representing the defendant in Hunstein v. Preferred Management & Collection Services confirmed yesterday that the defense will file another petition with the Eleventh Circuit Court of Appeals for an en banc rehearing of the case, seeking to vacate a ruling that was issued last week by the original panel of judges.
Rick Perr of Kaufman Dolowich & Voluck confirmed to AccountsRecovery.net that the defendant “intends to file for a rehearing en banc,” and will seek to convince the Eleventh Circuit that the now two judges who believe that the plaintiff has standing to sue and that using a vendor to print and mail collection letters constitutes a communication under the Fair Debt Collection Practices Act are wrong.
The panel of three judges — Judge Kevin Newsom, Judge Adalberto Jordan, and Judge Gerald Tjoflat — originally ruled unanimously back in April that the use of a letter vendor constituted a communication under the FDCPA. This ruling ignited the filing of thousands of copycat lawsuits nationwide as plaintiffs rushed to take advantage of the ruling. The defendants filed a petition for rehearing or an en banc rehearing seeking to have an opportunity to obtain a different ruling, and many industry participants filed amicus briefs of their own in support of the defendant.
The industry has been waiting since June for an announcement regarding the petition, only to see the original panel issue a new rulings of its own accord last week. In last week’s opinion, two of the three judges maintained their original opinion, while the third — Judge Tjoflat — changed his mind, in light of the Supreme Court ruling in TransUnion v. Ramirez, and now believes that the plaintiff does not have standing to sue in federal court because he did not suffer a concrete injury.
Once the new petition for an en banc rehearing is filed, interested parties will again have the opportunity to file amicus briefs in support of either side. Once all the briefs are filed, all 12 of the judges sitting on the Eleventh Circuit will be polled and asked if they think the case should be reheard. As long as one judge says yes to that question, then the entire panel of 12 judges votes on whether the petition for rehearing should be granted. If a majority of the 12 vote for the rehearing, then the new ruling is vacated and a new hearing will be held to determine the Court’s final decision in the case.
