In Wolfson v. Bank of Am., N.A., No. 20-35792, 2021 U.S. App. LEXIS 37864, at *2 (9th Cir. Dec. 21, 2021), the Court of Appeals affirmed dismissal of an FDCPA claim. The district court properly dismissed Wolfson's FDCPA claims because Wolfson failed to allege facts sufficient to show that defendant Bank of America, N.A., is considered a debt collector under… Read More
In Duncan v. Asset Recovery Specialists, Inc., Case No. 17-2598, 2018 WL 5623325 (7th Cir. Oct. 31, 2018), the Court of Appeals for the Seventh Circuit held that a repossession agency’s enforcement of an administrative fee did not trigger the FDPCA because it was not acting as the automobile finance company’s agent in doing so. The record on summary judgment… Read More
In Tepper v. Amos Financial, LLC, 2018 WL 3733862, at *6 (C.A.3 (Pa.), 2018), the Court of Appeals for the Third Circuit found that a debt buyer is still subject to the FDCPA post-Henson because the principal purpose was the collection of defaulted debt. Many would gladly pay Tuesday for a hamburger today. Of course, not all of those who… Read More
In Nitzkin v. Craig, 2018 WL 3074061 (Mich.App.), 3 (Mich.App., 2018), the Michigan Court of Appeals found that a creditor’s in-house counsel’s letters subjected the creditor to liability. With regard to the second and third requirements, the letter and Craig's deposition testimony make it clear that Guardian was collecting a debt owed to it while using the name of another.… Read More
In Infante v. Law Office of Joseph Onwuteaka, 2018 WL 2438153 (5th Cir. 2018), the Court of Appeals for the Fifth Circuit found in an unpublished decision that Henson did not protect a lawyer claiming that he owned the debts that he’d purchased. On appeal, Onwuteaka claims that he deserves “creditor” status by proxy. His argument (though only barely more… Read More
In Norman v. Allied Interstate, LLC, 2018 WL 2383099, at *2–3 (E.D.Pa., 2018), Judge McHugh held that a debt buyer remained subject to the FDCPA despite Henson. Until recently, it was settled law in the Third Circuit that debt buyers like LVNV were debt collectors under the Act, because the debts they attempt to collect were in default when they… Read More
In Henderson v. Santander Consumer USA (S.Ct. No 16-349,) Justice Gorsuch authored the opinion holding that Santander's purchase of the CitiFinancial automobile portfolio did not render it a debt collector under the FDCPA. Justice Gorsuch's folksy writing offered commentary and dicta that undoubtedly will create more litigation. For example, in setting the stage for the issue to be decided, Justice Gorsuch… Read More
In Simpson v. American Credit Acceptance, LLC, 2017 WL 1968284, at *3–4 (E.D.Tenn., 2017), Judge Guyton granted summary judgment to an auto finance company under the FDPCA because the account was not in default at the time of the assignment. The Defendant asserts that it is not subject to the FDCPA because it is not a debt collector. Further, the… Read More
In Henson v. Santander Consumer USA, Inc., 2016 WL 1128419, at *1 (4th Cir. 2016), the Court of Appeals for the 4th Circuit affirmed dismissal of an FDCPA case against Santander Consumer USA, who had purchased CitiFinancial's defaulted post-repossession debt as part of a bundle of receivables. When arguing from the definition of creditor, they overlook the fact that the exclusion… Read More
In Parker v. Capital One Auto Finance, et. al. 2015 WL 7864182, at *2 (S.D.Ind., 2015), Judge Magnus-Stinson held that auto finance companies collecting their own debts were not subject to the FDCPA. The FDCPA . . .“applies only to ‘debt collectors' seeking satisfaction of ‘debts' from ‘consumers'; it does not apply to ‘creditors.’ ” McKinney v. Cadleway Properties, Inc., 548 F.3d 496,… Read More
In Gold v. Midland Credit Management, Inc., --- F.Supp.3d ----, 2015 WL 1037700 (N.D.Cal. 2015), Judge Freeman granted summary judgment to a credit buyer and it’s debt collection agency, and struck Plaintiff’s expert on credit reporting to the extent he attempted to opine on debt collection issues. Judge Freeman found expert Evan Hendricks unqualified to testify about debt collection issues.… Read More
In Davidson v. Capital One Bank (USA), N.A., 2014 WL 4071891 (N.D.Ga. 2014), Judge Duffey held that an entity that acquires a portfolio with both current and defaulted debt is not subject to the FDCPA as to those loans in the portfolio that were in default at the time of the purchase. Judge Duffey held that 15 USC 1692a(6)’s application… Read More
In Rector v. WFDS, here, Judge Fischer granted summary judgment on Plaintiff's TCPA, FDCPA, and Intrusion on Seclusion claims. Plaintiff, a third party who was listed as credit reference on customer's credit application, claimed that Wells Fargo made dialer calls to his cell phone. Wells Fargo made a handful of calls to Plaintiff to question the whereabouts of the customer… Read More
In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More
"The way in which proposed rules might define “collectors” would be critical to determining the scope of the proposed rules. The Bureau is especially interested in information bearing on whether a rule under the Dodd-Frank Act would be useful to protect consumers from the conduct of creditors collecting in their own names on debts arising out of consumer credit transactions." … Read More
The Fair Debt Buying Practices Act of 2013 (Senate Bill 233) was signed by Governor Brown last month. The Act will apply to debts sold or resold on or after Jan. 1, 2014. Purpose: The Act will regulate the activities of persons and entities that purchase delinquent or charged-off consumer debt by requiring specific documentation to be maintained by the industry. … Read More
The CFPB published two bulletins today purporting to hold all entities under its jurisdiction accountable for unlawful debt collection practices. The first bulletin, here, proclaims that “It doesn’t matter who is collecting the debt — unfair, deceptive, or abusive practices are illegal", and emphasizes that both third-party collectors and creditors are responsible. The CFPB will be examining (1) Collecting additional amounts, such as interest,… Read More
In Schlegel v. Wells Fargo Bank, NA, --- F.3d ----, 2013 WL 3336727 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit held that a mortgage lender was not a debt collector under the FDCPA. The Schlegels next argue that their complaint adequately alleged that Wells Fargo meets the second definition of debt collector, which as noted above… Read More
In Gorman v. JP Morgan Chase Bank, 2013 WL 1882303 (S.D.Cal. 2013), Judge Anello addressed a Plaintiff’s FDCPA claims against his automobile finance company and the repossession company it hired. Judge Anello found that JP Morgan-Chase was not a debt collector because, as an auto finance company, it was the original creditor. Defendant JP Morgan argues that the FDCPA does… Read More
In Bongiovanni v. World Financial Network Nat. Bank Recovery, 2013 WL 142080 (W.D.Wash. 2013), Judge Leighton denied a Plaintiff’s claim that a Bank’s use of the term “Recovery Department” rendered it a ‘debt collector’ under the FDCPA for collecting in the name other than the creditor’s own name. Plaintiff's lawsuit is based on her claim that the July 28 letter… Read More
