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CEB Prac. Guide § 2A.13 -- Persons to Whom the FDCPA Apply -- Federal -- Other Excluded Persons

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District Court (Cal.) Confirms Foreclosure Trustee is Not Subject to FDCPA; Inclusion of ‘Mini-Miranda’ in Statutory Notices Does Not Change the Conclusion

by Scott J. Hyman |

In Gonzalez v. CNA Foreclosure Service, Inc., 2011 WL 2580681 (S.D.Cal. 2011), Judge Anello held that a foreclosure trustee was not a debt collector under federal and state law, and that inclusion of the FDCPA’s ‘mini-Miranda’ in statutory notices did not otherwise render the trustee subject to the FDCPA.   Based on Ms. Canty's undisputed testimony, the Court concludes CNA… Read More

District Court (MI) Finds Repossessor Might Be Subject to FDCPA if Peace is Breached

by Scott J. Hyman |

In Alexander v. Blackhawk Recovery and Investigation, L.L.C. --- F.Supp.2d ----, 2010 WL 3257355 (E.D.Mich.), Judge Steeh held that a repossessor might be subject to the FDCPA when the repossessor breaches the peace in connection with a vehicle repossession.   Judge Steeh explained:    In Montgomery v. Huntington Bank, the Sixth Circuit Court of Appeals found that Silver Shadow, the defendant-repossession… Read More

District Court Says FDCPA Might Apply to Automobile Repo Companies

by Scott J. Hyman |

In Durandisse v. U.S. Auto Task Force, 2009 WL 2337133 (S.D.N.Y. 2009), Judge Chin held that the FDCPA can apply to automobile repossession companies, explaining:   For most provisions of the FDCPA, repossession agencies are not considered “debt collectors.” See Jordan v. Kent Recovery Services, Inc., 731 F.Supp. 652, 656-58 (D.Del.1990). For purposes of Section 1692f(6) of the FDCPA, however,… Read More

District Court (Cal.) Addresses Bona Fide Fiduciary Exemption

by Scott J. Hyman |

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… Read More

9th Circuit Says Student Loan Guaranty Ass’n May Be Subject to FDCPA

by Scott J. Hyman |

In Rowe v. Educational Credit Management Corporation, 2009 WL 692006 (9th Cir. 2009), the Court of Appeals ruled on whether the Plaintiffs had pleaded a claim under the FDCPA against ECMC – a guaranty agency under the Higher Education Act of 1965 – or whether ECMC was exempt because its collection activity was “incidental to a bona fide fiduciary obligation.” … Read More

Central District Confirms Debt Assignee Not Subject to FDCPA

by Scott J. Hyman |

In Pineda v. Saxon Mortgage Services, Inc. (C.D.Cal.2008) 2008 WL 5187813, Judge Selna held that a loan servicer was not subject to the FDCPA: The FDCPA only applies to to a "debt collector", which specifically excludes creditors and mortgage servicers.  15 U.S.C. 1692a(6)(F).  Saxon cites persuasive authority to support this argument.  In Perry v. Stewart Title, Co. 756 F.2d 1197… Read More

Southern District Says “For Profit” Debt Counseling Service Might Be “Debt Collector” under FDCPA

by Scott J. Hyman |

In Yang v. DTS Financial Group (U.S.D.C. No. 07-CV1731JLS (WMc)), Judge Sammartino of the U.S.D.C. for the Southern District of California opined on whether a 'for profit' credit counseling service fell outside the FDCPA.  On an FRCP 12(b)(6) motion, Judge Sammartino held that the plaintiffs had pleaded adequate facts to surve the Motion.  The plaintiff had pleaded: Before May 1, 2006,… Read More

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