In Reed v. Global Acceptance Credit Company, 2008 WL 3330165 (N.D.Cal. 2008), Judge Whyte rejected plaintiff’s claim under Foti v. NCO Fin. Systems, Inc. 424 F.Supp.2d 643 (S.D.N.Y. 2006) and Hosseinzadeh v. M.R.S. Assocs, Inc. 337 F.Supp.2d 1104 (C.D.Cal. 2005) that a debt collector’s failure to identify itself as a “debt collector” under 15 U.S.C. 1692e(11) violated that provision.
Here, given the totality of the circumstances, it is very possible that even the least sophisticated consumer would have known that Global Acceptance Credit Company was a debt collector. . . The FDCPA also prohibits debt collectors from communicating with third parties about a consumer’s debt. 15 U.S.C. 1692c(b). Debt collectors therefore have competing obligations to notify a debtor in subsequent communications that they are a debt collector but not disclose this to third parties who may inadvertently hear the message. Considering that defendants must comply with these sometimes contradictory obligations and the language of the message is not clearly in violation of the FDCPA, there is a material fact as to whether defendants vioalted section 1692e(11).
The Court also rejected defendant’s claim for a set-off, citing Sparrow v. Mazda American Credit 385 F.Supp.2d 1063 (E.D.Cal. 2005).
Consideration that setoff is an equitable remedy, setoff appears contrary to the established policies of the FDCPA, and that a counterclaim for the underlying debt would likely be dismissed, defendants will not likely recover for the underlying debt in this litigation.