In Gruen v. EdFund, 2009 WL 2136785 (N.D.Cal. 2009), Judge White elaborated on who may be subject to the FDCPA: 

EdFund contends that it falls within the “bona fide fiduciary obligation” exemption to the FDCPA. The FDPCA exempts from the definition of “debt collector” any person “collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity … is incidental to a bona fide fiduciary obligation ….”See15 U.S.C. § 1692(a)(6)(F). “Two requirements must be satisfied for an entity to come within the exception to the FDCPA for collection activities ‘incidental to a bona fide fiduciary obligation.’…First, the entity must have a ‘fiduciary obligation.’ Second, the entity’s collec-tion activity must be ‘incidental to’ its ‘fiduciary obligation.’ ” Rowe v. Educational Credit Management Corp., 559 F.3d 1028, 1032 (9th Cir.2009).    Based on Plaintiff’s allegation that EdFund is a guarantee agency, EdFund satisfies the fiduciary obligation requirement. See id. at 1033.However, taking Plaintiff’s allegations as true, EdFund does not satisfy the second requirement. In Rowe, the court held that a guarantee agency that does not act as the guarantor of the loan, but instead was assigned the loan in order to act as a collection agent, does not engage in collection activity that is “incidental to” the original guar-antor’s fiduciary duty to the Department of Education. Id. at 1035.  Because the complaint alleged that the defendant’s only role in the case was to collect the loan assigned to it after the Plaintiff’s default, the defendant did not fall within the exception under the FDCPA. Id. Here, Plaintiff alleges that EdFund “acquired [his] defaulted student loans.” (Compl.,  2.) Such allegation implies that EdFund did not acquire Plaintiff’s loans until after had already defaulted. Moreover, the only conduct Plaintiff alleges by Ed-Fund is EdFund’s efforts to collect on Plaintiff’s defaulted loans. (Id.,  2, 23, 24.)  Based on these allegations, the Court finds that the fiduciary obligation exception to the FDCPA does not apply to EdFund. Therefore, the Court denies EdFund’s motion to dismiss on this ground.

 

Ed. — I know it’s far afield, but necessary to update the CEB chapter. . .