Author: Michael Lewis

Statements Made About Unsettled Issue of State Law Not Actionable Under the FDCPA

by Michael Lewis Michael Lewis

The 6th Circuit Court of Appeals reversed a District Court’s decision and issued a significant opinion in Van Hoven v. Buckles & Buckles, P.L.C., __ F.3d __, 2020 WL 239290 (6th Cir. Jan. 16, 2020). In Van Hoven, the court held that due to the unsettled interpretation of the law it was not improper to add court cost to the balance of a wage garnishment filed with the court and that the inclusion of previous court costs associated with previous garnishments, although not permissible, may be subject to the bonafide error defense which must be further reviewed by the lower court. To quote the Court, “Just as a lawyer does not ‘misrepresent’ the facts by making a factual contention later proved wrong, a lawyer does not ‘misrepresent’ the law by advancing a reasonable legal position later proved wrong.” Id., at p. 9. The Court went on to say “Legal contentions must be objectively baseless, not just later proved wrong, to be actionable under the [FDCPA].” Id. The Van Hoven holding is consistent with precedent from other Circuits and encourages creditors’ counsel to advance reasonable interpretations of unsettled law. The National Creditors Bar Association (which KWA is a proud member of) filed an amicus brief in support of reversal and has published a more in-depth article. To review their article, please visit: NCBA Member Bulletin, “Court Rules in Favor of NCBA Member Firm.”

Bill Reducing Ohio’s Statute of Limitations Raises Concerns for Creditors

by Michael Lewis Michael Lewis

Introduced May 21, Ohio H.B. 251[1] has been referred to the House’s Civil Justice Committee. This bill is essentially a re-introduction of the previously withdrawn H.B. No. 694 from May 2018.[2] H.B. 694 was withdrawn from committee consideration in early December 2018. KWA previously reported on this in January.[3]

H.B. 251 would amend R.C. 2305.06 and R.C. 2305.07 by reducing the statute of limitation on written contracts from eight (8) years to three (3) years and from six (6) years to three (3) years on non-written contracts. Section 4 of the bill mandates for written or non-written contracts that, “the period of limitations for causes of action would be three years from the bill’s effective dates, or the expiration of the period of limitations that was in effect prior to the bill’s effective dates, whichever occurs first.” Read more