Hill Wallack LLP Firm News/Blogs Feedhttp://www.hillwallack.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us23 Aug 2017firmwisehttp://blogs.law.harvard.edu/tech/rssHill Wallack LLP Partner Ronald L. Perl to speak at 2017 Community Association Law Summithttp://www.hillwallack.com/?t=40&an=68089&format=xml&p=555515 Nov 2017Event<em>Presented in cooperation with NJSBA Real Property, Trust &amp; Estate Law Section and the Community Associations Institute, New Jersey Chapter (CAI-NJ)<br /> </em><br /> <div style="text-align: center;"><strong><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblLocation">New Jersey Law Center<br /> 1 Constitution Sq. <br /> New Brunswick, NJ <br /> <br /> November 15, 2017 - 9:00 AM - 4:30PM</span></strong><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblLocation"><br /> </span></div> <div style="text-align: left;">Partner <a href="http://www.hillwallack.com/ronald-l-perl">Ronald L. Perl</a> will be speaking at the below seminar. <br /> &nbsp;</div> <div style="text-align: left;"><strong><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblLocation">About the program:</span></strong><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblLocation"><br /> <br /> </span>Join this panel of distinguished community association practitioners and consultants for a program that analyzes key issues faced today by community associations. The discussion will include strategies and solutions for financial and other issues currently impacting associations. These experts will deal with timely topics, such as new regulations adopted by HUD governing harassment, understanding concepts such as &ldquo;benefits derived&rdquo;, and the interplay between association liens and bankruptcy law under Rones and Keise.<br /> <br /> The lunchtime presentation will be a lively discussion of several &ldquo;Hot Topics&rdquo; in community association law.<br /> <br /> Regardless of whether you are experienced in association practice, involved sporadically with association matters, or interested in pursuing the opportunities this field affords, this program will deliver an in-depth look at the most timely and significant concerns of associations governing condominiums and other types of planned communities. <br /> </div>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Partner to be a panelist at CAI-NJ Legal Forumhttp://www.hillwallack.com/?t=40&an=68087&format=xml&p=555526 Sep 2017EventPartner <a href="http://www.hillwallack.com/caroline-record">Caroline Record</a> will be a panelist at CAI-NJ Legal Forum on Tuesday, September 26, 2017.<br /> <strong><br /> WHAT WOULD YOU DO?</strong><br /> Legal Issues Impacting Community Associations<br /> <br /> For those serving community associations, there are many more questions for legal counsel than there are answers. What do you do if you schedule an election, but there aren&rsquo;t enough candidates to run or owners to vote? What are you permitted to do to regulate emotional support animals? What do you do if the sponsor controls the board but won&rsquo;t attend meetings, or perform its other duties, as board members? What do you do if the board knows the reserves are insufficient but the owners contend the fees are already excessive? When should (and shouldn&rsquo;t) an association litigate, and what&rsquo;s the down side for the association (besides legal fees)? The questions go on and on. <em>1/2 day of credit towards the Professional Management Development Program (PMPD)</em>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Partner Jeffrey G. DiAmico to speak at Legal Roundtable Manager Education Seminarhttp://www.hillwallack.com/?t=40&an=68086&format=xml&p=555525 Sep 2017Event<a href="http://www.hillwallack.com/jeffrey-g-diamico">Jeffrey G. DiAmico</a> will be speaking at CAI, Pennsylvaina &amp; Delaware Valley Chapter's Legal Roundtable Manager Education Seminar during the 2017 Annual Golf Outing on September 25th.&nbsp;<br /> <br /> <strong>Topic: Real Estate Tax Appeals in Community Associations</strong><br /> <br /> This presentation focuses on Associations' ability to coordinate and assist Unit Owners in filing tax assessment appeals and the benefits and pitfalls to filing appeals. We will also discuss Association owned property and potential tax exemption status of same. <em><span>(Managers will receive (3) hours of Continuing Education Credits)<br /> </span></em><br /> <br />http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10What You Should Know about the Radburn Bill: Mandatory Changes to Election and Voting Procedures in New Jersey Community Associationshttp://www.hillwallack.com/?t=40&an=68091&format=xml&p=555522 Aug 2017Event<div style="text-align: center;"><em><span style="font-size: medium;">Presented by Hill Wallack LLP and Wilkin &amp; Guttenplan, P.C.</span></em></div> <span style="font-size: medium;"><strong><br /> </strong></span> <div style="text-align: center;"><span style="font-size: medium;"><strong> Tuesday, August 22, 2017 - 12:00 PM - 1:00 PM</strong></span></div> <p><strong><br /> About the program:</strong><br /> <br /> On July 13, 2017, Governor Christie signed into law P.L. 2017, Ch. 106 (S-2492/A-4091), which makes significant changes to the Planned Real Estate Development Full Disclosure Act (&ldquo;PREDFDA&rdquo;), N.J.S.A. 45:22A-43 et seq., regarding procedures for board elections and voting.</p> <p>Most of the newly enacted provisions will trump the current by-laws of every condominium association or homeowners association in New Jersey.</p> <p>Join our panel of attorneys from Hill Wallack LLP as they explain these new provisions, when they become effective, and what it all means for your association. This webinar will be moderated by Wilkin &amp; Guttenplan.</p> <p><a href="/D444E6/assets/files/Documents/HW_Radburn-Bill-cmyk_5x8-v2A-nocrops.pdf"><span style="color: rgb(51, 102, 255);">You can also read more about the Radburn Bill here.</span></a><br /> <br /> <strong>About the Speakers:</strong><br /> <span style="color: rgb(51, 102, 255);"><br /> </span><a href="http://www.hillwallack.com/ronald-l-perl"><span style="color: rgb(51, 102, 255);">Ronald L. Perl, Esq.</span></a><strong> </strong>is partner-in-charge of Hill Wallack LLP's Community Association Practice group in Princeton, New Jersey and a member of the firm's Management Committee. Ron concentrates his practice in the areas of community association law, construction law, transactional real estate, eminent domain and tax appeals. He is also a mediator for construction, real estate and community association disputes. He represents condominium associations, homeowners associations, cooperatives and real estate developers. Mr. Perl is nationally recognized for his work in the field of community association law. During his term as National President of the Community Associations Institute, he pursued a theme of &quot;building community&quot; and advocated a fresh look at the role of community associations. He has been extensively involved in developer transition and construction defect litigation over the past 30 years.</p> <p><a href="http://www.hillwallack.com/caroline-record"><span style="color: rgb(51, 102, 255);">Caroline Record, Esq.</span></a> is a &nbsp;partner in the Morristown, N.J. office of Hill Wallack LLP, where she is a member of the Community Associations and Real Estate practice groups. Caroline concentrates her practice in the area of community association law and residential real estate. Ms. Record's practice also includes estate planning and administration, special needs trusts, guardianship applications, foreclosure, and other real estate-related work. Previously, Ms. Record was heavily involved in all aspects of construction defect litigation and was a representative of the steering committee for community associations in the FRT Plywood consolidated litigation in the early 1990's.<br /> <br /> <a href="http://www.hillwallack.com/jonathan-h-katz"><span style="color: rgb(51, 102, 255);">Jonathan H. Katz, Esq.</span></a> is a partner in Hill Wallack LLP's Community Association Practice Group in Princeton, New Jersey. Jon concentrates his practice in the areas of community association law and litigation, representing condominium and homeowners associations throughout New Jersey and Eastern Pennsylvania. Jon currently serves on the Board of Directors of the Pa/Del Val chapter of CAI. He previously served as the Chair of CAI-NJ's Editorial Committee, CAI-Pa/Del Val's Communications &amp; Content Committee, and&nbsp; CAI-Pa/Del Val's New Jersey Regional Council.&nbsp;Jon is also the editor of Hill Wallack's Condominium and HOA Law Blog -&nbsp;<span style="color: rgb(51, 102, 255);"><a href="https://protect-us.mimecast.com/s/5JLdBrU77eVt5?domain=r20.rs6.net" target="_blank"><span style="color: rgb(51, 102, 255);">www.condolawnj.com</span></a></span><span style="color: rgb(51, 102, 255);">.</span></p> <span style="color: rgb(51, 102, 255);"> <br /> <span style="color: rgb(0, 0, 0);"><em>This course is approved by Community Association Managers International Certification Board </em></span><span style="color: rgb(0, 0, 0);"><em>(</em></span><span style="color: rgb(51, 102, 255);"><a href="https://protect-us.mimecast.com/s/VAGlBmieeYmtR?domain=r20.rs6.net" target="_blank"><em><b>CAMICB</b></em></a><span style="color: rgb(0, 0, 0);"><em>)</em></span><em> </em></span><span style="color: rgb(0, 0, 0);"><em>to fulfill continuing education requirements for the CMCA&reg; certification. This course has been approved for 1 education credit.</em></span></span>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Continues Backpack and School Supply Drive to Jewish Family & Children's Servicehttp://www.hillwallack.com/?t=40&an=68213&format=xml&p=531016 Aug 2017News Release<p>Hill Wallack LLP has continued its tradition of support to the community by participating in the Jewish Family &amp; Children&rsquo;s Service&rsquo;s (&ldquo;JFCS&rdquo;) backpack and school supply drive. Hill Wallack LLP partners, Michael Kahme and Ronald Perl recently delivered backpacks and assorted supplies to the JFCS, which are in turn supplied to children whose families could not otherwise afford them. Mr. Kahme, who is the firm&rsquo;s managing partner said:&nbsp; &ldquo;This year marks another successful backpack and school supply drive for JFCS and we are fortunate to be a part of this program and to help make it a success. Helping families in our community is part of our mission and our firm is pleased to once again support the JFCS in this effort.&rdquo;&nbsp; &nbsp;</p> <p>Jewish Family &amp; Children&rsquo;s Service of Greater Mercer County is a 501(c)(3) nonprofit community service that provides high quality social services and programs including therapy, information and referral, support, education and advocacy. Since 1937, JFCS has served those in need in Greater Mercer County.</p> <p><strong><img src="http://www.hillwallack.com/D444E6/assets/images/Random/IMG_0872.jpg" alt="" width="558" vspace="0" hspace="0" height="418" border="0" align="absmiddle" /><br /> <br /> About Hill Wallack LLP </strong></p> <p>Founded in 1978, Hill Wallack LLP is a leading full service law firm with offices in Princeton and Cedar Knolls, New Jersey and Yardley, Pennsylvania. Our regional strength places us in an ideal position in today&rsquo;s market. With over 70 attorneys, our mid-market size allows us to provide sophisticated, high-level service to clients in a cost-efficient, responsive manner. Our attorneys represent individual and entities in banking, community associations, creditors&rsquo; rights, employment &amp; labor law, family law, insurance, land use, litigation and real estate. For more information, please visit <a href="http://www.hillwallack.com">www.hillwallack.com</a>.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Expands Presence in North Jerseyhttp://www.hillwallack.com/?t=40&an=68133&format=xml&p=531014 Aug 2017News Release<p><b>Princeton, NJ August 14, 2017</b> --- Hill Wallack LLP is excited to announce that it has relocated its North Jersey office to 240 Cedar Knolls Road, Suite 209 in Cedar Knolls, New Jersey. Our new location and larger office will better serve our current clients' needs,&nbsp; enhance access to and service of the northern New Jersey legal market, and accommodate growth for the foreseeable future.</p> <p><b>About Hill Wallack LLP </b></p> <p>Founded in 1978, Hill Wallack LLP is a leading full service law firm with offices in Princeton and Cedar Knolls, New Jersey and Yardley, Pennsylvania. Our regional strength places us in an ideal position in today&rsquo;s market. With over 70 attorneys, our mid-market size allows us to provide sophisticated, high-level service to clients in a cost-efficient, responsive manner. Our attorneys represent individual and entities in banking, community associations, creditors&rsquo; rights, employment &amp; labor law, family law, insurance, land use, litigation and real estate. For more information, please visit <a href="http://www.hillwallack.com">www.hillwallack.com</a>.</p> <p align="center">###</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Regarding the Radburn: New Law Enhances Voting Participation Rights in New Jersey Community Associationshttp://www.hillwallack.com/?t=40&an=67688&format=xml&p=530918 Jul 2017Client Alert<p><em>Written by: <a href="http://www.hillwallack.com/jonathan-h-katz">Jonathan H. Katz</a></em></p> <p>On July 13, 2017, New Jersey Governor Chris Christie signed into law P.L. 2017, Ch. 106 (S-2492/A-4091). The new law makes significant changes to the Planned Real Estate Development Full Disclosure Act (&ldquo;PREDFDA&rdquo;), <u>N.J.S.A.</u> 45:22A-43 <u>et seq.</u>, with respect to procedures for board elections and voting participation rights. Although the legislation comes in direct response to complaints over a specific association &ndash; the Radburn Association in Fair Lawn &ndash; it will affect most, if not all, of the estimated 7,000 community associations located in New Jersey.</p> <p>As outlined in a January 2017 <a href="http://www.northjersey.com/story/news/new-jersey/2017/01/09/clashes-over-democracy-continuity-historic-radburn/95883076/">article</a> , the historic Radburn was established in 1929 as a &ldquo;Town for the Motor Age.&rdquo; The Radburn boasts 18 acres of internal parks, a shopping plaza, an elementary school, and &ldquo;other remnants of the founders&rsquo; ambitious attempt to create a self-sufficient community.&rdquo; However, for the past decade, pressure has been increasing from residents seeking to change what they considered to be an outdated and secretive process that the Raburn utilizes to elect its Board of Trustees. Specifically, not every owner in the Radburn was granted the right to either run for or vote for its Board. These issues led to <a href="https://scholar.google.com/scholar_case?case=16124908750021426870&amp;q=radburn&amp;hl=en&amp;as_sdt=4,31">litigation</a> and caused so much uproar that State Senator Robert Gordon (D-Fair Lawn) introduced this legislation to make the election/voting process more inclusive and transparent.</p> <p>Now that this legislation has been signed into law, it will change not only the Radburn&rsquo;s elections, but will also have implications for most of New Jersey&rsquo;s condominiums and homeowners associations. In fact, most of these newly enacted provisions will trump the every association&rsquo;s current by-laws. The most relevant provisions of the new legislation are as follows:</p> <p>1.The new law mandates that all owners shall be members of the association and, if in good standing, shall &ldquo;have the right to nominate, run for, freely elect, and be elected to&rdquo; the board that governs the association (meaning that members must be in good standing to either run for or be elected to the board);</p> <p>2.<span> </span>The new law requires that elections shall be held in (at least) at two year intervals if the governing documents do not otherwise set a specific time period for elections;</p> <p>3.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The new law requires that a term of a board member shall not be for more than four (4) years, although nothing shall prevent a board member from running for re-election (if allowable pursuant to the governing documents) or continuing to serve until his or her successor is elected;</p> <p>4.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The new law mandates that the association shall provide written notice to all association members of the right to nominate themselves or other association members in good standing for candidacy to serve on the board, and the period for submitting nominations shall not be less than fourteen (14) days from the mailing of the request for nominations;</p> <p>5.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The new law requires that the association shall provide all association members written notice of an election by personal delivery, mail, or electronic means no less than fourteen (14) days nor more than sixty (60) days prior to the scheduled election (the notice may only be sent electronically if the governing documents permit electronic notices or the member agreed in writing to accept notice by electronic means). So, even if an association&rsquo;s current by-laws provide for less than fourteen (14) days notice of an election meeting, this new law takes precedence and at least fourteen (14) days notice must be given prior to any such meeting;</p> <p>6.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The new law allows the use of proxies <u>and</u> absentee ballots (it cannot use proxies without making absentee ballots available), and it also requires that all proxies may be revoked at any time before the proxy holder casts a vote;</p> <p>7.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The notice of the election discussed above shall include a proxy ballot/absentee ballot (unless prohibited by the governing documents), and all ballots are required to list the names of all candidates nominated in alphabetical order by last name;</p> <p>8.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The new law allows for associations to utilize electronic voting when the board determines to allow voting by such means <u>and</u> when the association member consents to casting a vote electronically;</p> <p>9.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>If an association&rsquo;s by-laws do not provide for amendment by vote of the members or only allow members to amend through a majority vote exceeding a two-thirds majority, the new law requires that amendments to the by-laws may be adopted by &ldquo;an affirmative vote of a majority of the total authorized votes in an association.&rdquo; Also, a board can no longer unilaterally amend an association&rsquo;s by-laws (even if permitted by the governing documents) without a vote of the association members or to the extent necessary to render the by-laws consistent with the law; and</p> <p>10. The provisions discussed above as well as others in this new law takes effect immediately, and, as noted above, most of these newly enacted provisions will trump every association&rsquo;s current by-laws.</p> <p>You can read the full text of this legislation <a href="/D444E6/assets/files/Documents/s2492 - Radburn Legislation (05416888xA1E35).pdf">here</a>.</p> <p>For more information on this legislation or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: <a href="https://twitter.com/njcondolaw"><b><u>@njcondolaw</u></b></a>.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Partner Receives Lower Bucks County Chamber of Commerce Mitchell-Connor Awardhttp://www.hillwallack.com/?t=40&an=67476&format=xml&p=531030 Jun 2017News Release<p><b>Yardley, PA June 30, 2017</b> --- Hill Wallack LLP partner <a href="http://www.hillwallack.com/denise-m-bowman">Denise M. Bowman</a> was presented with the Mitchell-Connor Award.</p> <p>On June 8, 2017, the Lower Bucks County Chamber of Commerce presented Denise M. Bowman with the Mitchell-Connor Award at its Annual Meeting and Volunteer Recognition Breakfast. The Mitchell-Connor Award is the Chamber&rsquo;s most prestigious honor. The Award is presented to a current or past Board member who has exceeded his or her duties and responsibilities and has made significant and exceptional contributions to the Chamber&rsquo;s goals. &nbsp;This award has only been presented a few times to a very select group of individuals throughout the Chamber&rsquo;s history. &nbsp;Ms. Bowman was a Board member from July 2011 through June 2017.&nbsp; She served as Board Chair from 2014-2015 and as the Chamber&rsquo;s pro bono legal counsel for the 2012-2013 and 2016-2017 terms.<br /> <br /> <img src="http://www.hillwallack.com/D444E6/assets/images/Random/BBC 0617- 27.jpg" alt="" width="438" vspace="0" hspace="0" height="349" border="0" align="absmiddle" /></p> <p><b> </b></p> <p><i>Pictured left to right: Suzy Buehler, Chair of the LBCCC Board, Denise M. Bowman, Esq., Hill Wallack LLP, Amy McKenna, President of the LBCCC. </i></p> <p><b><br /> About Hill Wallack LLP </b></p> <p>Founded in 1978, Hill Wallack LLP is a leading full service law firm with offices in Princeton and Morristown, New Jersey and Yardley, Pennsylvania. Our regional strength places us in an ideal position in today&rsquo;s market. With nearly 70 lawyers, our mid-market size allows us to provide sophisticated, high-level service to clients in a cost-efficient, responsive manner. Our attorneys represent individual and entities in banking, community associations, creditors&rsquo; rights, employment &amp; labor law, family law, insurance, land use, litigation and real estate. For more information, please visit <a href="http://www.hillwallack.com">www.hillwallack.com</a>.</p> <p align="center">###</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Partner Ronald L. Perl to speak at NJSBA CLE Programhttp://www.hillwallack.com/?t=40&an=66891&format=xml&p=555522 Jun 2017Event<em><br /> Presented in cooperation with the NJSBA Real Property Trust and Estate Law Section and the New Jersey Chapter of the Community Associations Institute (CAI-NJ)</em><br /> <h4><span style="font-size: medium;"><br /> </span> <div style="text-align: center;"><span style="font-size: medium;"><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblLocation">New Jersey Law Center<br /> 1 Constitution Sq. <br /> New Brunswick, NJ</span><strong> </strong></span></div> </h4> <div id="dnn_ctr3157_DNNWebControlContainer_ctl00_dvDateTime"> <div id="dnn_ctr3157_DNNWebControlContainer_ctl00_dvDate"> <div style="text-align: center;"><span style="font-size: medium;"><strong><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblDate"><br /> June 22, 2017 -</span><span id="dnn_ctr3157_DNNWebControlContainer_ctl00_lblTime"> 9:00 AM - 1:00 PM <br /> </span></strong></span></div> </div> <div id="dnn_ctr3157_DNNWebControlContainer_ctl00_dvTime">&nbsp;</div> </div> <br /> <h4><strong><span style="font-size: medium;">Fundamentals of Community Association Law</span><br /> </strong></h4> <strong><br /> About the program:</strong><br /> <br /> Community associations constantly confront a broad range of issues in managing the affairs of the residents of condominiums and other planned communities. There is no shortage of problems and concerns arising from common interest ownership due to the mandatory membership of owners in associations, governance by an elected board, shared amenities and services, and the obligation to follow rules and regulations and to pay common expense assessments. The tools to resolve the legal issues faced by these associations span several legal practice areas &ndash; business, real estate, litigation, environmental, bankruptcy, collections, administrative law, to name just a few. <p>In this program which has been brought back due to popular demand, our highly experienced panel of community association law experts will introduce you to the fundamentals of community association law, and give you a foundation and resources to deal with issues confronted by associations, their governing boards, owners, and other professionals, such as managing agents, accountants, and engineers. <br /> <br /> Among the panelists are: <a href="http://www.hillwallack.com/ronald-l-perl">Ronald L. Perl, Esq.</a>, Hill Wallack LLP; George C. Greatrex, Esq., Shivers Gosnay &amp; Greatrex, LLC and Susan J. Radom, Esq., Radom &amp; Wetter. <br /> <br /> Christine F. Li, Esq., Past Chair, NJSBA Real Property, Trust &amp; Estate Law Section will be moderating the program.<strong><br /> <br /> <br /> </strong></p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10High Court Finds FDCPA Does Not Apply to Individuals and Entities Collecting a Debt on Their Own Accounthttp://www.hillwallack.com/?t=40&an=66834&format=xml&p=530914 Jun 2017Client Alert<p><em>Written by: <a href="http://www.hillwallack.com/brett-m-buterick">Brett M. Buterick, Esq.</a></em></p> <p>On Monday, June 12, 2017, in a major victory for U.S. financial institutions, the United States Supreme Court unanimously ruled that individuals and entities who purchase debts originated by another, whether in default or not, and subsequently collect on the debt on their own account are not &ldquo;debt collectors&rdquo; subject to the provisions of 15 U.S.C. &sect;1692, the Fair Debt Collection Practices Act (&ldquo;FDCPA&rdquo;). <u>Henson v. Santander Consumer USA Inc.</u>, No. 16-349, 2017 WL 2507342 (U.S. June 12, 2017).</p> <p>The Court&rsquo;s ruling is significant as it resolves the application of the definition of &ldquo;debt collector&rdquo; under the FDCPA as it relates to the&nbsp;&nbsp;prohibitions set forth in the statute.&nbsp;Section 1692a(6) defines a &quot;debt collector&rdquo; as:</p> <p>[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.</p> <p>15 U.S.C. &sect; 1692a(6).</p> <p>Courts throughout the country have applied the definition of &ldquo;debt collector&rdquo; under &sect; 1692a(6) differently as it relates to &nbsp;owners of debts purchased post-default resulting in different treatment depending on the circuit where the case was brought.&nbsp;<u>See</u>, <u>e.g.</u>, <u>Henson v. Santander Consumer USA, Inc.</u>, 817 F.3d 131 (4th Cir. 2016) , <u>cert. granted,</u> 137 S. Ct. 810, 196 L. Ed. 2d 595 (2017), and <u>aff'd,</u> No. 16-349, 2017 WL 2507342 (U.S. June 12, 2017)(non-originating debt holder, not a debt collector under &sect; 1692a(6), despite default status at time debt was acquired)); <u>Davidson v. Capital One Bank (USA), N. A.,</u> 797 F. 3d 1309 (11<sup>th</sup> Cir. 2015) (same); <u>McKinney v. Cadleway Properties, Inc.</u>, 548 F.3d 496 (7th Cir. 2008) <u>abrogated by</u> <u>Henson v. Santander Consumer USA Inc.</u>, No. 16-349, 2017 WL 2507342 (U.S. June 12, 2017) (purchaser of defaulted debt was &ldquo;debt collector&rdquo; subject to requirements of FDCP); <u>F.T.C. v. Check Inv'rs, Inc.</u>, 502 F.3d 159 (3d Cir. 2007) <u>abrogated by</u> <u>Henson v. Santander Consumer USA Inc.</u>, No. 16-349, 2017 WL 2507342 (U.S. June 12, 2017) (same).</p> <p>In <u>Henson</u>, the Fourth Circuit concluded that Santander Consumer USA, Inc. was a creditor, not a debt collector under &sect; 1692a, as Santander was collecting the petitioners&rsquo; debt on its own behalf, despite purchasing same from the loan originator post-default.&nbsp;<u>Henson v. Santander Consumer USA, Inc.</u>, 817 F.3d 131 (4th Cir. 2016), <u>cert. granted,</u> 137 S. Ct. 810, 196 L. Ed. 2d 595 (2017), and <u>aff'd,</u> No. 16-349, 2017 WL 2507342 (U.S. June 12, 2017).&nbsp;The lower court found Santander sought to collect debts it owned and did not regularly seek to collect debts &ldquo;owed . . .another,&rdquo; and thus could not be considered a debt collector subject to FDCPA regulation.&nbsp;<u>Id.</u></p> <p>In Justice Neil Gorsuch&rsquo;s first written Supreme Court opinion, the Court unanimously upheld the Fourth Circuit&rsquo;s ruling in favor of Santander Consumer USA, Inc.&nbsp;The Court noted the narrowness of the question presented, as both the petitioner and respondent agreed third-party debt collection agents generally qualify as &ldquo;debt collectors&rdquo; under the FDCPA, while institutions operating to collect a debt originated in-house act only on behalf of themselves.&nbsp;<u>Henson v. Santander Consumer USA Inc.</u>, No. 16-349, 2017 WL 2507342 at *2 (U.S. June 12, 2017).&nbsp;Accordingly, the only remaining issue for the Court to decide was &ldquo;how to classify individuals and entities that regularly purchase debts originated by someone else and then seek to collect those debts for their own account.&rdquo;&nbsp;<u>Id.</u></p> <p>The Court, examining the petitioners&rsquo; textually and policy based arguments, rejected same and found the statute cannot contemplate petitioners&rsquo; interpretation of the definition.&nbsp;<u>Id.</u> at *3-4.&nbsp;Focusing on the phrase debts &ldquo;owed . . . another,&rdquo; the Court held the language does not &ldquo;appear to suggest that we should care how a debt owner came to be a debt owner&mdash; whether the owner originated the debt or came by it only through a later purchase.&nbsp;All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for &lsquo;another.&rsquo;&rdquo;&nbsp;<u>Id.</u> at* 3.&nbsp;The Court further found that, since the interpretation argued by counsel for the Borrower lacks textual support, it would need to redraft the legislation to include the petitioners&rsquo; reading which is well outside the scope of the Court&rsquo;s power. &nbsp;<u>Id.</u> at *4.&nbsp;</p> <p><b><u>Takeaways</u></b></p> <p>The decision represents a major victory for financial institutions throughout the United States.&nbsp;Not only does the Court&rsquo;s holding ease the minds of institutions dealing regularly in the acquisition and/or sale of distressed debt, it also eases burdens on the entire distressed debt marketplace as the looming cloud of potentially frivolous FDCPA action is lifted from the sale and purchase of such assets.&nbsp;Over time, the decision will likely result in an increase in distressed debt trade as the cost of FDCPA litigation is removed from a good portion of transactions.</p> <p>The decision also presents a significant economic benefit to those owners of defaulted debt, collecting on their own account, currently involved in FDCPA litigation as the statute&rsquo;s restrictions clearly no longer applies to them.&nbsp;</p> <p>Hill Wallack LLP&rsquo;s Creditors&rsquo; Rights and Bankruptcy practice group offers strategic and timely advice on all matters affecting buyers and sellers of distressed debt.&nbsp;Our attorneys are seasoned litigators of matters brought under consumer financial protection statutes, having particular in depth knowledge of the entirety of the Fair Debt Collection Practices Act.&nbsp;Our attorneys are experienced navigators of the FDCPA and provide expedient, protective, and efficient solutions to ensure client security and compliance.</p> <p>If you have recently been sued under the FDCPA, or have questions or concerns regarding asset sales or acquisitions and the effect of the Court&rsquo;s recent decision, please contact Michael Kahme, Esq., Telephone: (609) 734-6383; Email: <a href="mailto:mkahme@hillwallack.com">mkahme@hillwallack.com</a>, Thomas W. Halm, Jr., Esq., Telephone (609) 734-6338; Email: <a href="mailto:thalm@hillwallack.com">thalm@hillwallack.com</a>., Eric Kelner, Esq., Telephone (609) 734-4451; Email: <a href="mailto:ekelner@hillwallack.com">ekelner@hillwallack.com</a>, or Brett M. Buterick, Esq., Telephone (609) 734-6330; Email: <a href="mailto:bbuterick@hillwallack.com">bbuterick@hillwallack.com</a>.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10