In Reygadas v. DNF Assocs., LLC, No. 19-3167, 2020 U.S. App. LEXIS 38989 (8th Cir. Dec. 14, 2020), the Court of Appeals held that a debt buyer was subject to the FDCPA. Emphasizing that the Supreme Court in Henson overruled the so-called "default test," DNF argues that the debt buyer is a creditor -- a person "to whom a debt… Read More
In Bennett v. Cielo Homeowners Ass'n, No. 19-cv-2131-WQH-BLM, 2020 U.S. Dist. LEXIS 78850, at *17-20 (S.D. Cal. May 4, 2020), Judge Hayes addressed principal/agent liability under the FDCPA. "Seeking somewhat to level the playing field between debtors and debt collectors, the FDCPA prohibits debt collectors 'from making false or misleading representations and from engaging in various abusive and unfair practices.'"… Read More
In FTC v. The Primary Group, Inc., 2017 WL 4329713, at *2 (C.A.11 (Ga.), 2017), the Court of Appeals for the 11th Circuit established what must be proven to establish respondent superior liability on the corporate owner under the FDCPA. We have not yet decided what suffices to show that a corporation's owners, officers, or employees had knowledge of its violations… Read More
In Devine v. The Judge Law Firm, No.: 16-CV-02999-AJB-MDD, 2017 WL 3118777 (S.D. Cal. July 21, 2017), the Court found that a creditor is not vicariously responsible for the actions of its attorney under the FDCPA if the credit is not itself subject to the FDCPA. Presently, the Court is persuaded by the weight of authority limiting FDCPA liability to… Read More
In Bird v. Real Time Resolutions, Inc., 2017 WL 661375, at *8 (N.D.Cal., 2017), Judge Davila dismissed claims against a creditor and the creditor's law firm arising under the FDCPA. Here, Mr. Reyes is an attorney at the law firm Ericksen Arbuthnot, which was retained as defense counsel for Real Time in the lawsuits filed by Plaintiff. Nowhere in the… Read More
In Janetos v. Fulton Friedman & Gullace, LLP, 2016 WL 1382174, at *4-5 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit held that a debt collection law firm failed to clearly identify the creditor in its debt collection validation letter and, accordingly, the Plaintiff need not demonstrate materiality by extrinsic evidence. It is true that for claims… Read More
In Bartell v. National Collegiate Student Loan Trust 2005-3, 2015 WL 1907337 (N.D. Cal. 2015), Judge Seeborg found that an FDCPA plaintiff stated a claim against the debt collectors. On September 19, 2013, Bartell received a telephone voice message including neither the caller’s identity nor a clear indication of the caller’s purpose. Upon tracing the number, she discovered the call… 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 Makreas v. Moore Law Group, A.P.C., --- Fed.Appx. ----, 2014 WL 2979018 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that a Plaintiff failed to demonstrate that a creditor was vicariously liable under the FDPCA/Rosenthal Act or that the UCL was a proper vehicle to obtain relief under those statutes. The district court properly dismissed… Read More
In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act. In… Read More
Judge Karlton's precedent-setting and liability imposing decisions under the FDCPA are numerous. (See., e.g, Newman v. Checkrite California, Inc., 912 F.Supp. 1354, E.D.Cal. 1995)(debt collector vicariously liable for debt collection activities of attorney; no FDCPA defense that collector was following the orders of the superiors; litigation privilege does not apply to FDCPA); Newman v. Checkrite California, Inc., 1994 WL 896637… Read More
In Breidenbach v. Experian, 2013 WL 1010565 (S.D.Cal. 2013), Judge Curiel found that an otherwise exempt creditor cannot be brought under the FDCPA by a theory of vicarious liability. AES argues Plaintiff's FDCPA claim against AES fails because AES is not a “debt collector” under the FDCPA and because AES cannot be held vicariously liable for the acts of WWR,… Read More
In Heathman v. Portfolio Recovery Associates, LLC, 2013 WL 755674 (S.D.Cal. 2013), Judge Gonzalez granted summary judgment on an FDCPA claim filed against a debt collector who had sued the wrong person in a state-court debt collection lawsuit. Judge Gonzalez rejected the contention that the creditor could not be held liable, vicariously or otherwise. Judge Gonzalez held that clients could… Read More
In Miranda v. Field Asset Services, 124047 (S.D.Cal. 2013), Judge Curiel found that an FDCPA Plaintiff could not bring a creditor under the FDCPA for hiring a third party debt collector. Plaintiff alternatively argues that OneWest is vicariously liable for FAS's alleged debt collection activities. Plaintiff relies on Fox v. Citicorp and Schutz v. Arrow Fin. Services, both of… Read More
In Grant–Hall v. Cavalry Portfolio Services, LLC, 2012 WL 619651 (N.D.Ill. 2012), Judge Feinerman held that a debt collection agency was vicariously liable for the conduct of their attorneys, and that the filing of a defective lawsuit can violate the FDCPA where the filing falsely implies that the debt collector has legal recourse against the debt. The filing of a legally defective… Read More
In McNichols v. Moore Law Group, 2012 WL 667760 (S.D.Cal. 2012), Judge Hayes held (without analysis) that a Plaintiff stated vicarious FDCPA liability against a Bank for the collection actions of its counsel. Plaintiff alleges in the Complaint that Defendant Dis-cover Bank “uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which… Read More
In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting. In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More
In Combs v. NCO Financial Systems, Inc., 2011 WL 1288686 (E.D.Pa. 2011), Judge Yohn affirmed the rule that a creditor, otherwise exempt from the FDCPA, can not be brought under its auspices through the doctrine of vicarious liability, explaining: In response to Capital One's motion, plaintiff does not explicitly contest or concede that Capital One is not a “debt… Read More
In Owings v. Hunt & Henriques, 2010 WL 3489342 (S.D.Cal. 2010), Judge Lorenz found that a debt collector violated the Rosenthal Act in the collection of a debt from a National Guardsman called into military service. The definition of “debt collector” under California Civil Code Section 1788.2(c) expressly excludes “an attorney or counselor at law.” FN2 A creditor's counsel… Read More
In Marlin v. Chase Cardmember Services, Inc. 2009 WL 2043014 (E.D.Cal. 2009), Judge Ishii held that a credit card company collecting its own obligation was not subject to the FDCPA. Moreover, Judge Ishii denied leave to amend notwithstanding the Plaintiff’s suspicion that the creditor employed an outside agency to collect in its name. The Court does not believe that… Read More
