FDCPA

Lawyers who owned an undercapitalized debt collection firm were properly held to be alter egos of the debt collection firm for purposes of liability under the FDCPA and the UCL as well as for attorney fee under CCP 1021.5. Read More

The trial court did not abuse its discretion in bifurcating and trying first plaintiff's UCL claim even though the claim was based on an alleged FDCPA violation and defendant was entitled to a jury trial of the FDCPA claim.  The UCL claim is equitable.  Equitable first is the rule in California.  Also, that procedure serves the UCL's purpose of affording… Read More

Civ. Code 5655(a) provides that payments a homeowner makes to an HOA for delinquent assessments must to allocated first to repay the delinquent assessments and only thereafter to pay attorney fees, costs, and interest incurred in connection with the HOA's attempt to collect the delinquent assessments.  This decision holds that the protections afforded by that section benefit the public, in… Read More

Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third party's lien on the property.  Plaintiff contends that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan.  She filed a Chapter 13 bankruptcy to avoid the foreclosure and listed… Read More

Following Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, this decision holds that the absolute litigation privilege generally does not apply to Rosenthal FDCPA claims, even to claims that the defendant debt collector manufactured false evidence to support its debt collection lawsuits. Read More

The Rooker-Feldman doctrine did not apply to bar this FDCPA claim against the debt collection attorneys who had filed a memorandum of costs after winning judgment in a debt collection suit.  The state court judgment was entered before the cost memo and did not rule on its propriety.  Hence, the federal court was not being asked to review any state… Read More

This decision holds that separate acts in the course of a collection action may constitute independent violations of the FDCPA and that the FDCPA's one-year limitations period runs separately from each of those violations.  To constitute a separate violation, the litigation conduct must be the last opportunity for the debt collector to comply with the FDCPA and must occur on… Read More

The trial court correctly granted defendant's anti-SLAPP motion to strike plaintiff's Rosenthal Fair Debt Collection Practices Act suit because plaintiff could not show a likelihood of prevailing on the claim.  Civ. Code 1788.17 incorporates provisions of the federal Fair Debt Collection Practices Act, including 15 USC 1692e which forbids false statements in attempts to collect debts and misrepresentation of the… Read More

The trial court correctly granted defendant's anti-SLAPP motion to strike plaintiff's Rosenthal Fair Debt Collection Practices Act suit because plaintiff could not show a likelihood of prevailing on the claim.  Civ. Code 1788.17 incorporates provisions of the federal Fair Debt Collection Practices Act, including 15 USC 1692e which forbids false statements in attempts to collect debts and misrepresentation of the… Read More

Following ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, this decision holds that the filing of the complaint tolls the statute of limitations for all claims the defendant pleads in a cross-complaint, whether compulsory or permissive, so long as the cross-claim was not time-barred at the time the complaint was filed.  This limitations tolling doctrine… 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

This decision holds that Walls v. Wells Fargo Bank (9th Cir. 2002) 276 F.3d 502 does not apply to or bar an FDCPA claim against a debt collector for trying to collect a debt that was fully repaid under the debtor's Chapter 13 plan before the debtor received a discharge.  That is because in these circumstances whether an unfair debt… Read More

The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. 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

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

Reporting to a credit agency on the deliquency or overdue status of a debt is not a per se violation of the automatic stay, which only forbids collection on the debt, not reports about it.  Read More

Home loan borrower failed to allege viable claims for fraud, violation of the UCL or Rosenthal Act, or wrongful foreclosure based on alleged late transfer of loan to a securitized trust or flaws in the nonjudicial foreclosure process.  Read More

District court abused its discretion by approving a class action settlement which provided no actual benefit to class members in exchange for release of their FDCPA claims.  Read More

An attorney engaged in debt collection and violated the Fair Debt Collection Practices Act by sending a homeowner a letter demanding payment of delinquent homeowners association dues and threatening to file a lien on the homeowner’s property unless the dues were paid within 25 days, thus overshadowing the FDCPA-required notice that the homeowner had 30 days to demand validation of… Read More