CEB Prac. Guide § 2A.35 -- Communications with the Debtor -- Unfair Practices

In Seeley v. Nevada Ass'n Services, Inc., 2012 WL 295250 (D.Nev. 2012), Judge Navarro found that a 30-day validation letter contained ‘overshadowing’ language in potential violation of the FDPCA.  The offending language, contrasted against the 30-day validation period, was as follows:   If you want to resolve this matter before a Notice of Delinquent Assessment Lien is recorded and sent… Read More

This may be the only case I’ve seen on this subject.  Judge Davis addressed the timing of depositing post-dated checks under the FDCPA in Winter v. Messerli & Kramer, P.A. 2012 WL 186569 (D.Minn. 2012).  The facts were as follows.  MK asserts that on June 30, 2010, Plaintiff contacted MK and spoke with defendant Ashley and requested that he be… Read More

In Scott v. Kelkris Associates, Inc., 2012 WL 161415 (E.D.Cal. 2012), Judge Shubb granted summary judgment to a debt collector on FDCPA and Rosenthal Act claims where the debtor claimed that the debt collector’s substitution service of process relating to a state-court collection action was invalid.  The Court found no unconscionable practices under the FDCPA, and imposed an intent element… Read More

In Hylkema v. Associated Credit Service Inc., 2012 WL 13681 (W.D.Wash. 2012), Judge Theiler rejected Plaintiff’s claims against a debt collector where the Plaintiff orally disputed his debt and asserted that the debt collector owed him certain affirmative obligations once he made such a dispute.  The Plaintiff claimed to have experience in the debt collection industry, yet the Court found… Read More

In Munekiyo v. Capital One Bank, N.A., 2011 WL 6057830 (C.D.Cal. 2011), Judge Snyder addressed Capital One’s use of a debt collection agency to service defaulted accounts, and potential deception in correspondence from Capital One that resulted in the consumer dealing with the third party debt collector.  Plaintiff filed a class action alleging that Plaintiff maintained a credit card account… Read More

In Cordes v. Frederick J. Hanna & Associates, P.C, 2011 Wl 2214939 (D. Minn. 2011), Judge Kyle followed Zortman v. J.C. Christensen & Assoc., Inc., 2011 WL 1630935 (D. Minn. 2011) in holding a debt collector liable for inadvertent disclosure to third parties by way of voicemail messages left on an answering machine.  Judge Kyle rejected the debt collector's argument… Read More

In Huertas v. Galaxy Asset Management, --- F.3d ----, 2011 WL 1361568 (3d Cir. 2011), the Court of Appeals for the Third Circuit held that a debt collector can collect on out-of-statute debt, but can not threaten litigation because it has no right to do so:    Huertas's FDCPA claim against AMP turns on whether a debt collector may attempt… Read More

In McCullough v. Johnson, et. al., here, the Court of Appeals for the Ninth Circuit affirmed a large jury verdict against a debt collection law firm arising from the Firm's prosecution of a debt collection lawsuit. The facts, briefly stated, are as follows: A debt collection law firm in Montana was retained by a creditor to collect a credit card… Read More

In Shami v. National Enterprise Systems, 2010 WL 3824151 (E.D.N.Y. 2010), Judge Mauskopf concluded that a debt collector’s addition of an optional fee for payment by telephone potentially violated the FDCPA.  The letter stated, in part:   You can now pay by automated phone system ... or on the internet. Transaction fees will be charged if you use the automated… Read More

In Janti v. Encore Capital Group, Inc. 2010 WL 3058260 (S.D.Cal. 2010), Judge Sammartino held that the Plaintiff stated a class action claim against a debt collector for allegedly collecting out-of-statute debt.  Judge Sammartino held that the Plaintiff had properly pleaded claims under the FDCPA and UCL, but not the FCRA, explaining that the least sophisticated consumer could have believed… Read More

In Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010), Judge Houston addressed the applicability of Foti to leaving voicemail messages on a debtor’s answering machine. Courts have held that not disclosing the above prescribed facts in a message left for the debtor can be a violation of § 1692e(11) [i.e. the mini-Miranda]. See Costa… Read More

In Lange v. CIR Law Offices, 2010 WL 2524089 (S.D.Cal. 2010) Judge Bencivengo found that a law firm engaged in debt collection whose post-judgment garnishment had erroneously garnished exempt social security funds did not violate the FDCPA.  Judge Bencivengo explained:    In the absence of any evidence that CIR had any knowledge of the nature of Lange's account prior to… Read More

In Shuler v. Ingram & Associates, 2010 WL 1833626 (N.D.Ala. 2010), Judge Kallon addressed what constitutes harassment, both in substance and frequency.   As to substance, Judge Kallon listed to audiotapes and found that testiness and advising a consumer of the consequences of their (in)action did not violate the FDCPA.   Section 1692d(2) forbids debt collectors from “engaging in any conduct… Read More

In Membrila v. Receivables Performance Management, LLC 2010 WL 1407274 (S.D.Cal.), Judge Gonzalez found that a consumer properly pleaded a claim against a debt collector for the manner of recording the collection calls, explaining:   California Penal Code § 632, on the other hand, does apply to recording by a participant to a conversation. Section 632 provides a civil remedy… Read More

In Gryzbowski v. I.C. System, Inc. --- F.Supp.2d ----, 2010 WL 774386 (M.D.Pa. 2010), Judge Vanaski held that cell phone messages are subject to Foti, explaining: Although there is no Third Circuit case law dealing with the appropriateness of identification of a debt-collector in a voicemail or answering machine message, numerous district courts have been faced with the issue and… Read More

In Imperial Merchant Services v. Hunt, 2009 WL 2424543 (2009), the California Supreme Court granted a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548) to decide a question of California law: whether a debt collector recovering on a dishonored check may recover both a service charge under section 1719 and… Read More

In Wahl v. Midland Credit, Inc. --- F.3d ----, 2009 WL 426055 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit addressed whether a debt collector used a false and deceptive means to collect a debt because it included in the “principal” balance amounts which the original creditor levied as “interest”.  The Court of Appeals described Plaintiff’s argument… Read More

In Great Seneca Financial v. Holtzclaw, (L.A.Super. No. LC075416), Superior Court Judge Lichtman granted Summary Adjudication to Great Seneca Financial against the debtor's FDCPA claim.  The debtor argued that Great Seneca had not qualified to do business in California at the time Great Seneca filed a collection action against the debtor.  Judge Lichtman rejected that argument as factual basis for… Read More

In Kelly v. Wolpoff & Abramson, LLP, 2008 WL 2397689 (D.Colo. 2008), District Judge Nottingham rejected a consumer's claim that a debt collector violated the FDCPA by collecing on a "charged off" account.  Judge Nottingham rejected the misperception some consumers have that "charging off" an account equates to debt extinguishment. According to generally accepted accounting principles codified into federal regulations and… Read More

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,… Read More