Private Remedies and Access to Justice in a Post-Midland World

21 Pages Posted: 15 Jul 2018  

Kara J. Bruce

University of Toledo - College of Law

Alexandra Sickler

University of North Dakota - School of Law

Date Written: January 19, 2018

Abstract

Over the past several years, chapter 13 debtors have used the Fair Debt Collection Practices Act (FDCPA) as a tool to challenge debt buyers who file massive numbers of proofs of claim for debt for which the statute of limitations has run. In Midland Funding v. Johnson, the Supreme Court held that filing a proof of claim for time-barred debt does not violate the FDCPA. This decision put an end to the spate of FDCPA litigation and, in so doing, placed the burden of policing stale debt claims squarely on the shoulders of chapter 13 trustees.

In this Essay, we question whether this state of affairs is in line with the balance of powers contemplated by the Bankruptcy Code or feasible in light of the realities of bankruptcy practice. We also explore alternatives to FDCPA litigation that might provide a more viable response to this problem. Finally, we consider what the rise and fall of these FDCPA claims might tell us about the role private litigation can play in improving access to justice in bankruptcy.

Keywords: Consumer Bankruptcy, Midland Funding, Private Enforcement, Chapter 13, FDCPA, Proof Of Claim, Consumer Finance, CFPB

Suggested Citation

Bruce, Kara J. and Sickler, Alexandra, Private Remedies and Access to Justice in a Post-Midland World (January 19, 2018). Available at SSRN: https://ssrn.com/abstract=3198902 or http://dx.doi.org/10.2139/ssrn.3198902

Kara J. Bruce (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

Alexandra Sickler

University of North Dakota - School of Law ( email )

P.O. Box 9003
Grand Forks, ND 58202-9003
United States

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