Debt Collection

A debt falls within the scope of the Rosenthal Fair Debt Collection Practices Act even if the consumer being dunned does not actually owe the debt and did not enter into the consumer credit transaction that the debt collector is attempting to collect.  Under Civ. Code, § 1788.2(f), a consumer debt is money due or owing, or alleged to be… Read More

Reversing an Anti-SLAPP order striking plaintiff's complaint, this decision holds that Civ. Code 1788.17 incorporates into the Rosenthal Fair Debt Collection Practices Act, the strict liability standard of 15 USC 1692(e) for false statements made in collecting a debt or regarding the legal status of the debt.  Thus, the debt collector may be held liable under the Rosenthal Act for… Read More

The district court correctly dismissed this suit, invoking Younger abstention.  Plaintiff sought to enjoin the defendant district attorney from prosecuting it in state court for employing a vendor to make harassing collection calls in violation of state law.  The four Younger factors all weighed in favor of abstention.  The state action was ongoing as no proceedings of substance had yet… Read More

Reversing an Anti-SLAPP order striking plaintiff's complaint, this decision holds that Civ. Code 1788.17 incorprates into the Rosenthal Fair Debt Collection Practices Act, the strict liability standard of 15 USC 1692(e) for false statements made in collecting a debt or regarding the legal status of the debt.  Thus, the debt collector may be held liable under the Rosenthal Act for… Read More

The district attorneys of several counties served Alorica with an investigative subpoena to produce records regarding it debt collection practices and in particular with respect to its collections for a national bank.  Held, the subpoena was properly enforced.  That Alorica claims not to be a debt collector within the meaning of the Rosenthal Fair Debt Collection Practices Act is no… Read More

Threatening or filing suit on a time-barred debt is a misleading and unfair debt collection practice violating 15 USC 1692e and 1692f.  To allege and prove a violation of those sections, the debtor need not allege or prove that the debt collector knew the debt was time-barred.  However, the debt collector may be able to establish an affirmative defense of… Read More

(A creditor need not prove that it was harmed or that the debtor was rendered unable to pay his debt to the creditor in order to prevail in seeking to set aside a transfer of the debtor's property on the ground the transfer was made with actual intent to defraud creditors under Civ. Code 3439.04(a)(1). Read More

If a foreclosure plaintiff seeks not only to foreclose on the property but also to recover the remainder of the debt through a deficiency judgment, then the plaintiff is attempting to collect a debt within the meaning of the FDCPA.  But if the plaintiff is simply enforcing a security interest by retaking or forcing a sale of the property, without… Read More

In a class action under the Fair Debt Collection Practices Act, statutory damages are limited to the lesser of $500,000 or 1% of the defendant's net worth, and the net worth calculation is the plaintiff’s burden to prove just as all the other elements are. Read More

A collection attorney engages in debt collection for purposes of the Fair Debt Collection Practices Act when he pursues judicial foreclosure because that proceeding allows for the collection of a deficiency judgment—unlike a nonjudicial foreclosure, the sole goal of which is to retake property given as security. Read More

Borrower stated viable Fair Debt Collection Practices Act claim against loan servicer, which acquired the loan while it was in default, included improper fees in the reinstatement amount it quoted, and kept treating the loan as delinquent and pursued non-judicial foreclosure after the borrower had paid the reinstatement sum in full. Read More

In collections suit, collection agency plaintiff was held to Delaware’s three-year statute of limitations—which was the jurisdiction selected in the credit card account agreement’s choice of law clause—as opposed to the four-year limitations period in California, where the suit was brought. Read More

Defendant was sufficiently engaged in collection efforts to qualify as a debt collection agency and hence did not run afoul of the Fair Debt Collection Practices Act’s prohibition on creating the false belief in a consumer that a person other than the creditor is participating in the collection of the debt. Read More

Lenders and loan servicers who act to collect on conventional real-estate-secured loans are "debt collectors" for purposes of California's Rosenthal Fair Debt Collection Practices Act. Read More

A state court complaint’s misstatements of the amount owed and interest rate in a complaint a law firm filed to collect a consumer credit card debt were material and a violation of the Fair Debt Collection Practices Act.   Read More

An entity that collects debts that it has purchased for its own account is not a “debt collector” for FDCPA purposes, since it is collecting on the debts for itself and not for another.  Read More

Filing a facially time-barred creditor’s claim in a Chapter 13 is not a false, deceptive, misleading, unconscionable or unfair means of collecting a debt under the FCDPA, since Chapter 13 debtors are protected from paying dubious claims by the Chapter 13 trustee's supervision of the case.  Read More

An Anti-SLAPP motion was properly granted against suit alleging that creditor violated state and federal Fair Debt Collection Practices Acts by recording an abstract of judgment creditor had obtained against plaintiff’s former domestic partner.  Read More

Under 28 USC § 3304(a), the federal government may void as fraudulent any transfer made by a debtor who does not receive equivalent value, and a judgment debtor’s disclaimer of an inheritance fits that definition.  Read More

Borrowers’ Fair Debt Collection Practices Act claims arising from non-judicial foreclosure actions were properly dismissed, except for claim under 15 USC § 1692f(6) for threatening foreclosure when no right to foreclose existed.  Read More