So a number of folks have recently discussed the fact that the mandate in Hunstein was withheld, as if it was some sort of indicator that the Eleventh Circuit was likely to grant en banc review. While I am on record predicting that the Eleventh Circuit WILL grant a rehearing, the fact that the mandate was withheld does not necessarily portend that result. Indeed, the withholding of the mandate is more-or-less automatic under the rules of appellate procedure as I read them. So I didn’t even mention the issue on TCPAWorld since, you know, it didn’t seem to matter.

Well one Defendant’s counsel apparently disagreed  and recently went “all in” on the mandate issue urging a district court to stay a Hunstein complaint because, inter alia, the mandate in Hunstein was withheld by virtue of the rules. Indeed the Defendant went so far as to imply Hunstein was not a published decision owing to the mandate being withheld.

It did not go well.

In Durling v Credit Corp Solutions, Case no. 21-61002-CIV-SMITH, Doc. no. 24 (S.D. Fl. Jul. 8, 2021) the court refused to stay a case pending the outcome of the Hunstein en banc petition. Ruling here: durling ruling

The Court held directly that under Circuit Rule 36, “[u]nder the law of this circuit, published opinions are binding precedent. The issuance or non-issuance of the mandate does not affect the result.” So the fact that a mandate was withheld pending the outcome of the rehearing petition did not impact the precedential value of Hunstein, which–in the Durling court’s words– “is the law of this circuit.”

As noted, the Defendant had urged the Court that Hunstein was not a published decision for some reason, which is really weird since.. well, it is. The Durling court made short work of this argument, squarely holding: “the Court notes that Hunstein, 994 F.3d 1341 (11th Cir. 2021), is a published opinion.” Enough said.

The Court also found that Defendant failed to make out a case of hardship or inequity under the Landis standard and noted that the requested stay might be a lengthy one. In the end the Court holds “Defendant has not met its burden of establishing that a stay is appropriate under these circumstances.”

Durling appears to be the first ruling in the nation addressing whether Hunstein complaints ought to be stayed pending the en banc effort. Its a real set back for servicers and collectors that this one went the wrong way. I’d expect to see this case cited far and wide by the Plaintiff’s bar. (Oh, and I just noticed that Greenwald was behind this one–why am I not surprised?)

Still, Durling might be properly read as a case where the Defendant simply advanced arguments that were, shall we say, exotic and failed–as the Court found–to address the core Landis factors with direct evidence. Read in that light, Durling should not be viewed as persuasive authority and perhaps other courts will be more receptive to stays pending an en banc review.

In the end the Hunstein saga will be with us for a while and I suspect Durling will not be the last word on whether Hunstein complaints ought to proceed in the shadow of a VERY well-supported en banc rehearing request.

More to come.

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