CEB Prac. Guide § 2A.34B -- False or Misleading Representations (Legal Status of Debt or Charges)

In McWhorter v. Ocwen Loan Servicing, LLC, No.: 2:15-cv-01831-MHH, 2017 WL 3315375 (N.D. Ala. August 3, 2017), Judge Haikala found that a defendant’s charging of fees associated with telephonic Speedpay fees stated a claim under the FDCPA. When Mr. McWhorter and Mr. Fielder made loan payments to Ocwen online and over the telephone, Ocwen and Western Union charged convenience fees,… Read More

On July 25, 2017, the CFPB issued a Compliance Bulletin cautioning against misrepresenting and adding convenience fees to pay-by-phone payment options.  A copy of the bulletin is here and our take on the CFPB's bulletin is here.   For further questions on convenience fees, please contact Erik Kemp at ek@severson.com or Scott Hyman at sjh@severson.com Read More

In Lauren Cummings v. Jaburg & Wilk, P.C., 2017 WL 977574, at *4–5 (D.Ariz., 2017), the District Court granted summary judgment under the FDCPA because the misstatement of the debt was not material under 9th Circuit precedent. The Court finds that Ninth Circuit precedent controls the facts of this case in favor of Defendant. Under the FDCPA, § 1692e prohibits… Read More

In Lyudmila Maronyan v. Financial Credit Network Inc., 2017 WL 57835, at *3 (C.D.Cal., 2017), Judge Wilson allowed an FDCPA claim to proceed based on pleadings in the state court collection action. FCN's statements regarding its entitlement to attorneys' fees in the state court complaint may in fact be misleading to the least sophisticated debtor. Although one part of FCN's… Read More

In Deaguero v. Mountain Lion Acquisitions, Inc., 2016 WL 7030364 (2016), the California Court of Appeal in an unpublished decision found that the CFL does not prohibit the sale of debt to an unlicensed entity. Deaguero's claims depend upon his construction of section 22340, subdivision (a). Specifically, his claim that Mountain Lion violated the FDCPA and RFDCPA is based on the… Read More

In Provo v. Rady Children's Hospital-San Diego, 2015 WL 3648845, at *2-3 (S.D.Cal.,2015), Judge Miller granted in part and denied in part a debt collector's motion to dismiss an FDCPA plaintiff's claim based on collection of a medical debt. Judge Miller found that the letter did not unlawfully seek to collect prejudgment interest without a judgment. Plaintiffs contend that a debt… Read More

In Diaz v. Kubler Corp, 2015 WL 2214634, -- F.3d. – (9th Cir. 2015), the Court of Appeals for the Ninth Circuit found that a debt collector’s dunning letter did not violate the FDCPA/Rosenthal Act by seeking collection of statutory pre-judgment interest in addition to the liquidated debt. It is quite plain that Kubler would have been entitled to prejudgment… Read More

In Buchanan v. Northland Group, Inc.,--- F.3d ----, 2015 WL 149528 (6th Cir. 2015), the Court of Appeals for the 6th Circuit found a debt-buyer's collection deceptive because it did not disclose that the statute of limitations on the debt had run and, if the debtor made a partial payment, it would commence a new statute of limitations. The “settlement offer”… Read More

In Stratton v. Portfolio Recovery Associates, LLC, --- F.3d ----, 2014 WL 5394517 (6th Cir. 2014), the Court of Appeals for the 6th Circuit found that attempts to collect pre-judgment interest before a judgment was obtained violated the FDCPA due to the intersection of the state’s usury statute with its pre-judgment interest statute. This case involves the intersection of the… Read More

In Grace v. LVNV Funding, Inc., 2014 WL 2167487 (W.D.Ky. 2014), Judge Heyburn found that an 18% “service charge” charged for late payments in a medical services contract was disguised “interest” that violated Kentucky’s usury laws and the FDCPA.  Judge Heyburn denied summary judgment to the Plaintiff, however, because it was not clear that the misconduct occurred during the FDCPA’s… Read More

In Grochowski v. Daniel N. Gordon, P.C., 2014 WL 1516586 (W.D.Wash. 2014), Judge Zilly addressed the impact of a “charge-off” on a creditor and debt collector’s right to collect the contractual rate and the state pre-judgment interest rate. Plaintiff contends that, in “charging off” plaintiff's debt, Capital One waived its right to collect interest at the contractual rate and, as… Read More

In Quinteros v. MBI Associates, Inc.--- F.Supp.2d ----, 2014 WL 793138 (E.D.N.Y. 2014), Judge Kuntz held that a debt collector's letter purporting to charge a $5.00 Processing Fee for payments by phone or credit card violated the FDCPA because the charge was not set forth by the instrument creating the obligation and was incidental to the debt. On February 22, 2012,… Read More

In Hanson v. JQD, LLC, 2014 WL 644469 (N.D.Cal. 2014), Judge Seeborg held that the Davis Sterling Act – in conjunction with the FDCPA -- may constrain a third party debt collector’s right to collect unfettered costs of collection, but found that the legal theory pleaded by the Plaintiffs to be unclear. Although no California appellate court has directly addressed… Read More

In Hadsell v. CACH, LLC, 2014 WL 497433 (S.D.Cal. 2014), Judge Lorenz, within the context of a motion for reconsideration, granted partial summary judgment and denied partial summary judgment to an FDCPA defendant alleged to have violated a Cease-and-Desist letter from the debtor and to have violated the FDCPA by praying for 10% interest in the Prayer for Relief in… Read More