Korman, DiGennaro, Lastorino and Mascia Victorious at Second Circuit Court of Appeals

August 1, 2018 | Appeals

Korman, DiGennaro, Lastorino and Mascia were victorious at the Second Circuit Court of Appeals.  In a published opinion, the Second Circuit affirmed a district court order dismissing the plaintiff’s action to recover damages under the Fair Debt Collection Practices Act (FDCPA).   The firm represented a law firm that was sued under the FDCPA for allegedly commencing a mortgage foreclosure proceeding in New York State court by using false, misleading or deceptive information.  The firm convinced the Court to adopt two important rules.  First, the Court interpreted 15 U.S.C. § 1692e to include a materiality requirement.  As a result, Section 1692e prohibits false, deceptive or misleading statements but only if those statements are material and would mislead the least sophisticated consumer.  Second, the Court held that the pleading exception to 15 U.S.C. § 1692g includes a request for judicial intervention (RJI) and a certificate of merit.  This result expanded on the Court’s decision in Carlin v. Davison Fink LLP, 852 F.3d 207, 213 (2d Cir. 2017), which held that the documents attached to a mortgage foreclosure complaint qualify for the pleading exception in Section 1692g(d).  The Court reasoned that although the RJI and certificate of merit are not filed with the summons and complaint, they qualify for the pleading exception because New York State law requires them to be filed shortly after the summons and complaint in order to complete initiation of the case.

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