CEB Prac. Guide § 2A.34 -- Communications with the Debtor -- False or Misleading Representations

In Pasquale v. Law Offices of Nelson & Kennard, 2013 WL 1618020 (N.D.Cal. 2013), Judge Spero held that a debt collection law firm violated the FDCPA by failing to identify in subsequent voicemail messages to a debtor that it was a debt collector under 15 USC 1692e(11), but that its failure to do so was entitled to protection under the… Read More

In O'Bryne v. Portfolio Recovery Associates LLC, 2013 WL 1223590 (S.D.Cal. 2013), Judge Gonzales found that a debt collector’s lawsuit alleging claims for account stated and for common counts did not misstate the debt in violation of the Rosenthal Act and FDCPA.   Plaintiff moved for summary judgment as to its first cause of action for violation of the FDCPA on… Read More

In Wells v. Deca Financial Services, LLC, 2013 WL 772870 (S.D.Ind. 2013), Judge Magnus-Stinson found that 15 USC § 1692e(8) imposes no duty upon debt collectors to advise credit reporting agencies that a debt is disputed when it is disputed after it is reported. Deca argues that “when a debt collector has made a report to a credit agency and… Read More

In Raab v. Nationwide Collection Agencies, Inc., 2013 WL 53760 (W.D.Mich. 2013), Judge Bell found Plaintiff's threadbare FDCPA claim that defendant wrongfully threatened to garnish her wages failed to state a claim. The statutory violations alleged are simply a formulaic recitation of the prohibitions contained in the statutes. Plaintiff has not alleged what Defendant said or did to represent or imply that… Read More

In Brown v. International Asset Group, LLC, 2012 WL 6002512 (S.D.Ohio 2012), Judge Black found that a debt collector that falsely held itself out on the internet as a Legal-aid service for low income debtors violated the FDCPA. Plaintiff, a resident of Piqua, Ohio, conducted a web search for free legal aid services in March 2012, and logged on to… Read More

In a trio of cases, Benedict v. CACH, LLC, 2012 WL 5382255 (S.D. Cal. 2012), Odish v. CACH, LLC, 2012 WL 5382260 (S.D. Cal. 2012), and Jackson v. CACH, LLC, 2012 WL 5382257 (S.D.Cal. 2012), Judge Battaglia held that a frequently-used Plaintiff’s trick stating that “Plaintiff takes no position on the validity of the debt” in support of Plaintiff’s FDCPA… Read More

In Thompson v. National Credit Adjusters, LLC, 2012 WL 5372577 (D.Minn. 2012), Judge Nelson found a skip tracer’s letter to consumers to obtain telephone information for the skip tracer’s debt collector clients rendered the skip tracer subject to the FDCPA, too.  The facts were as follows. Plaintiff Lamont A. Thompson incurred a consumer debt with Fast Cash Personal Loan. Plaintiff… Read More

  In Swearingen v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 4354748 (N.D.Ill. 2012), Judge Chang found that a ‘loud buzzing sound’ in the debt collector’s telephone calls was meant to harass the debtor. In addition, Gordon testified that on numerous occasions he requested that Portfolio provide him with a letter or at least an address for him… Read More

In Easterling v. Collecto, Inc., --- F.3d ----, 2012 WL 3734389 (2d Cir. 2012), the Court of Appeals for the Second Circuit held that a student loan debt collector’s representation that the debtor’s loans were not eligible for discharge in bankruptcy was false, triggering FDCPA liability. Instead, the operative inquiry in this case is whether the hypothetical least sophisticated consumer… Read More

In Tourgeman v. Collins Financial Services, Inc.,  2012 WL 3731807 (S.D.Cal. 2012), Judge Bencivengo rejected a Plaintiff’s FDCPA claim grounded on a Creditor’s collection firm’s misidentification of the creditor and account number in collection correspondence and, ultimately, in a collection lawsuit.  Judge Bencivengo addressed the liability of the creditor/debt collector for this mistake.  Judge Bencivengo found the misidentification not material… Read More

In Lox v. CDA, Ltd., --- F.3d ----, 2012 WL 3124781 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit found that extrinsic evidence was not required to demonstrate material falsity of a collection letter that stated that a consumer “may” have to pay attorneys’ fees, when there was neither a statutory nor contractual basis for recovery of… Read More

In Grant-Fletcher v. Brachfeld Law Group, PC, 2012 WL 2523094 (D.Md. 2012), Judge Nickerson held that a debt collector telling a consumer, after the 30 day validation period expired, that the consumer could not dispute the debt constitute a false representation.  The facts were as follows.   This action arises from communications made in connection with Defendant's efforts to collect debts… Read More

In Zemeckis v. Global Credit & Collection Corp. --- F.3d ----, 2012 WL 1650479 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit addressed what constitutes puffery or material misrepresentations in a collection letter under the FDCPA.  To summarize, the Court of Appeals held that  (1) suggestions in dunning letter, for debtor to “take action now” and call “today,”… Read More

  In Koller v. West Bay Acquisitions, LLC, 2012 WL 1189481 (N.D.Cal. 2012), Judge Breyer held that vague references to ‘further action’ in the collection context could be interpreted by the least sophisticated consumer as threats to make false credit reporting.Yes, that’s what he held. Section 1692e(5) prohibits “threat[s] to take any action that cannot legally be taken or that… Read More

In Cruz v. International Collection Corp., --- F.3d ----, 2012 WL 742337 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that a debt collector violated the FDCPA by seeking costs and interest that were not allowed under state law.  The Court of Appeals explained: Under Nevada law, a debt collector may not collect any interest or fees unless… 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 Braham v. Automated Accounts, Inc., 2012 WL 554036 (E.D.Wash. 2012), Judge Shea found that a discussion of wage garnishment did not involve threat of an action that cannot legally be taken or that is not intended to be taken in violation of the FDCPA.  Judge Shea included a good discussion of ‘discussion of garnishment’ or ‘discussion of legal process’… Read More

In Gamby v. Equifax Information Services LLC, 2012 WL 447491 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit found that a debt collector's loss of a lawsuit seeking to collect on the debt ipso facto created FDCPA liability based on the debt collector's previous statements that the the debtor's owed the debt.  Taken together, the plain language of… 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