Case to be reheard en banc with the full panel
I don’t think anyone saw this coming, but the U.S. Court of Appeals for the Eleventh Circuit issued an order vacating the Hunstein vs. Preferred Collection & Management Services, Inc. decision Wednesday morning. In addition, they issued an order sua sponte to rehear Hunstein v. Preferred Collection and Management Services, Inc. en banc before the full circuit court of appeals panel. The rehearing date has not yet been set.
The sua sponte order was issued after an Eleventh Circuit judge requested a poll on whether the case should be reheard en banc. Fortunately for the collections industry, a majority of the active judges voted in favor of the rehearing. The order expressly vacated the existing substitute opinion issued by the panel earlier this month, meaning that the opinion is no longer binding precedent in the Eleventh Circuit and should not be cited as having any precedential value within the Eleventh Circuit or beyond.
Back on April 21, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued a decision on Hunstein v. Preferred Collection and Management Services, Inc., in which on first impression, found that a debt collector’s transmittal of a consumer’s personal information to its letter vendor constituted a prohibited third-party communication “in connection with the collection of any debt” within the meaning of section 1692c(b) of the Fair Debt Collection Practices Act (“FDCPA”). This ruling had broad ramifications for the accounts receivable management industry and has spawned a new wave of FDCPA litigation.
The next step will be for the Eleventh Circuit to state the specific issues on which it requests briefing and establish the timing for rehearing en banc. We are hopeful that the full court will agree to consider not just the standing issue on which the panel divided, but also the broader issue of whether any FDCPA claim can exist under the circumstances in light of the plain language of the FDCPA and other considerations, all of which were briefed extensively in prior amicus petitions supporting the defendant’s original rehearing effort earlier this year.
11th Circuit Court of Appeals tosses out the Hunstein decision
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