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CEB Prac. Guide § 2A.02 -- Statutory Background and Pre-emption -- Statutory Pre-emption

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Court of Appeal (Cal.) Finds that Law Enforcement Need Not Prove that Target is a “Debt Collector” under the Rosenthal Act to Issue Subpoena to Determine Whether Target is Subject to the Rosenthal Act

by Scott J. Hyman |

In People v. Alorica Inc., 77 Cal. App. 5th 60, 62-63 (2022), the Court of Appeal affirmed the authority of a District Attorney to issue a subpoena to determine whether an entity was subject to the Rosenthal Act.  The basis of the dispute was as follows. According to the Riverside County District Attorney's Office, in January 2019, the district attorneys'… Read More

District Court (Cal.) Addresses ASFA, UCL Standing, and Rosenthal Act in NOI Post-Repossession Letter Cases

by Scott J. Hyman |

In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez.  As to the claim under the ASFA, Judge Sabraw held:   Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information… Read More

District Court (MI) Finds HEA Pre-Empts State-Law Debt Collection Statute

by Scott J. Hyman |

In Hunt v. Sallie Mae, Inc., 2011 WL 2847428 (E.D.Mich. 2011), Judge Zatkoff held that the HEA pre-empted Michigan’s state law debt collection statutes, explaining:   Defendant contends that Plaintiff's state-law claims fail to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) because they are preempted by the HEA. Defendant asserts that the HEA requires it to make diligent efforts to… Read More

District Court (Fla.) Holds NBA Does Not Pre-Empt State’s Fair Debt Collection Law

by Scott J. Hyman |

In In re Bate, --- B.R. ----, 2011 WL 2469689 (Bkrtcy.M.D.Fla. 2011), Bankruptcy Judge Williamson held that although the National Bank Act preempts state laws that prevent or significantly interfere with the exercise by national banks of their powers, and the Florida Consumer Collection Practices Act applies generally to all creditors and prohibits inappropriate debt collection practices, the FCCPA does… Read More

District Court Finds No Extra-territorial Rosenthal Act Application; Says FCRA Re-Investigation Claim Against Furnisher Requires Actual Inaccuracy

by Scott J. Hyman |

In Edeh v. Midland Credit Management, Inc. (D. Minn. 2010) , Judge Schiltz found that a debt collector does not violate the FDCPA by reporting an account to the Credit Reporting Agencies after a debtor demands validation without first validating the debt, explaining The Court rejects Edeh’s argument that a debt collector who, before verifying a disputed debt to a consumer,… Read More

Southern District says Civ. Code 1788.17’s incorporation of federal law involves no “substantial federal question”

by Scott J. Hyman |

In Murphy v. Triad Financial, Judge Benitez of USDC for the Southern District dismissed a Rosenthal Act claim as lacking federal question jurisdiction.  Judge Benitez rejected the argument that since Civil Code § 1788.17 incorporates the federal FDCPA, claims filed under that section trigger federal question jurisdiction under the "substantial federal question" doctrine.  The parties "argue that Murphy's Rosenthal Act… Read More