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January 2021

Gordon & Rees Wins Argument that FDCPA Allows Debt Collectors to Litigate Open Questions of Law and Summary Judgment in Two Class Action Cases

Gordon Rees Scully Mansukhani interoffice team of Chicago Partner Avanti Bakane, Chicago Senior Counsel Brian Myers, and Portland Associate Kelly Huedepohl, successfully defended the firm's client in two putative class action cases alleging that the Fair Debt Collection Practices Act (“FDCPA”) was violated when the entity sent letters purportedly threatening litigation on accounts the plaintiff argued were time barred.

The team argued that the limitations period had not expired or, at the very least, the question is an open one under Oregon law. As such, plaintiff’s claims fail as a matter of law because the FDCPA does not prohibit litigating open questions of law and the letters at issue were permissible under the statute. Alternatively, in the event the court found plaintiff had stated a claim, that claim must nonetheless fail because any error was excused under the bona-fide error defense.

The Magistrate Judge agreed. To determine whether the FDCPA was violated resolution of the limitations question is not required: if the applicable limitations period presents an open question of law, debt collectors are entitled to bring their suits into state court for resolution. Further, the court held, the issue is properly addressed as a matter for the debtor to plead and prove as part of his or her case in chief, not a bona fide error affirmative defense that a debt collector must prove. It is not an error to pursue a good-faith legal argument in the courts. Consequently, the Judge recommended judgment in favor of the client on both class action cases.

The team had invaluable assistance from Portland Partner Greg Lockwood and Portland Legal Secretary Heather Coffey.

Avanti D. Bakane
Kelly F. Huedepohl
W. Gregory Lockwood
Brian H. Myers


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