Obduskey v. McCarthy & Holthus LLP
Issues
Does the Fair Debt Collection Practices Act apply when an attorney, acting on behalf of a creditor, engages in non-judicial foreclosure proceedings that should be treated as debt collection?
This case asks the Supreme Court to decide whether the definition of “debt collection” in the Fair Debt Collection Practices Act (“FDCPA”) includes non-judicial foreclosure proceedings and whether the Act therefore applies to attorneys carrying out non-judicial foreclosures. Respondent McCarthy & Holthus LLP (“McCarthy”) pursued a non-judicial foreclosure of property owned by Petitioner Dennis Obduskey, who defaulted on a loan secured by the property at issue in the foreclosure. Obduskey subsequently filed suit against McCarthy, challenging the foreclosure and citing the FDCPA. The Tenth Circuit held that the FDCPA did not apply because non-judicial foreclosures do not qualify as a debt collection activity and are instead considered the enforcement of a security interest. Obduskey contends that non-judicial foreclosure proceedings are attempts to collect a debt because they demand that the debtor pay by threatening to take away his home and, if foreclosure is completed, liquidate the debt by selling the home. The outcome of this case has significant implications on how protected borrowers are and how much liability attorneys, creditors, and trustees face.
Questions as Framed for the Court by the Parties
Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.
In 2007, Petitioner Dennis Obduskey obtained a loan from Magnus Financial Corporation in the amount of $329,940 to purchase a home in Colorado. Obduskey v. Wells Fargo, 879 F.3d 1216, 1218 (10th Cir. 2018). Wells Fargo serviced the loan, which was secured by the property.
Written by
Edited by
Additional Resources
- Evan Weinberger, Supreme Court Could Kill Some Foreclosure Collection Lawsuits, Bloomberg BNA (June 28, 2018).
- Greg Stohr, Debt-Collection Dispute Gets U.S. Supreme Court Review, Bloomberg (June 28, 2018).
- Locke Lord LLP, “Debt Collector” Or “Enforcer of Security Interest” – That Is The Question; Supreme Court To Answer Next Term, JD Supra (July 6, 2018).