FDCPA (Fed & State)

In Coyne v. Midland Funding LLC, 2018 WL 3423469, at *2–3 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit held that an FDCPA Plaintiff had pleaded a claim against a debt collector based on their claim that the debt collector's dunning letter had compounded interest in violation of state law and the contract forming the obligation. It is undisputed that Minnesota… Read More

In Ames v. T-Mobile USA, Inc., 2018 WL 3417516, at *2 (S.D.Cal., 2018), the District Court dismissed a Rosenthal Act transaction due to the absence of a consumer credit transaction. T-Mobile argues that Plaintiff’s RFDCPA claim fails because Plaintiff does not allege a consumer debt. The existence of a consumer debt is a necessary element of Plaintiff’s RFDCPA claim. Cal.… Read More

In Britton v. ABC Legal Services, Inc., 2018 WL 3207907, at *6–8 (N.D.Cal., 2018), Judge Koh allowed an FDCPA claim to proceed despite the defendant's argument that the Rooker-Feldman doctrine deprived her of jurisdiction. Further, there is a split among district courts in the Ninth Circuit over this issue. Some federal district courts in California have held that an FDCPA… 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 McNair v. Maxwell & Morgan PC, 2018 WL 3097153 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit clarified when attorneys are engaged in debt collection under the FDCPA. Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency… Read More

In Ghalehtak v. Fay Servicing, LLC,  2018 WL 2553570, at *2 (N.D.Cal., 2018), Judge Hamilton remanded a Rosenthal Act claim back to state court. Defendants argue that federal jurisdiction exists under § 1331 because plaintiffs’ RFDCPA claim specifically references parts of the FDCPA. Under the “well-pleaded complaint rule...federal jurisdiction exists only when a federal question is presented on the face… Read More

In Trupp v. Ally Financial, Inc., Civ. Action No. 17-5404, 2018 WL 2462777 (E.D. Pa. May 31, 2018), Judge Jones allowed a TCPA defendant to file a counter-claim for the debt against the Plaintiff. Plaintiff’s contention that “it is clear [the] federal TCPA claim and the state law breach of contract counterclaim involve completely different legal theories and evidence,” is not… Read More

In Gonzalez v. Chase Bank, USA, Case No.: 3:18-cv-00431-CAB-AGS,  2018 WL 2461490 (S.D. Cal. June 1, 2018), the District Court allowed a TCPA/FDCPA defendant creditor to counter-claim against the Plaintiff for the debt due and owing. The Court is inclined to follow the majority of Ninth Circuit district courts cited above, and finds that supplemental jurisdiction exists over a defendant’s… 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 Randall v. Ditech Financial, LLC., 2018 WL 2355927, at *3 (Cal.App. 4 Dist., 2018), the California Court of Appeal found that an FDCPA Plaintiff stated a claim against a mortgage servicer who accepted assignment of a loan that already was in default. Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular… Read More

In Miller v. Yellow Pages, et. al., 2018 WL 2329716 (S.D.Cal.), 2 (S.D.Cal., 2018), the District Court found that California’s Rosenthal Act does not itself create federal jurisdiction merely because it incorporates federal law. Further, Plaintiff’s state law claims do not raise a federal issue sufficient to confer federal jurisdiction. The “mere presence” of the FDCPA in a state law cause… Read More

In Rotkiske v. Klemm, 2018 WL 2209120 (3rd Cir. 2018), the Court of Appeals for the Third Circuit held that the FDCPA’s Statute of Limitations has no discovery rule, disagreeing with the 4th and 9th Circuits. The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation… Read More

In Deleon v. Action Collection Agency of Boston, 2018 WL 2089343 (S.D.N.Y., 2018), Judge Abrams found that a debt collector’s dunning letter identified the creditor properly when it used the creditor’s acronym. The fact that the Letter identifies the creditor by an acronym does not alter this conclusion. To comply with the FDCPA, “a creditor may use the name under… Read More

In Kozlowski v. Bank of America, 2018 WL 2096381 (E.D.Cal.), 4 (E.D.Cal., 2018), the District Court found that the Plaintiff failed to allege an FCRA claim against a furnished. Plaintiff fails, however, to adequately allege the second and third elements of a claim under § 1681s-2(b). Plaintiff does not allege in her complaint that a consumer reporting agency notified the furnisher—here, BANA—of… Read More

In Johnson v. Enhanced Recovery Company, LLC., 2018 WL 2057798, at *2–3 (N.D.Ind., 2018), Judge Simon certified an FDCPA class action over the defendant's objection. ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be… Read More

In Evans v. Portfolio Recovery Associates, LLC, 2018 WL 2035315, at *5–7 (C.A.7 (Ill.), 2018), the Court of Appeals for the Seventh Circuit held that a debt collector violates the FDCPA when the debt collector receives an (untimely) dispute from a debtor in response to a 30-day validation letter and thereafter reports the account to a consumer reporting agency without reporting… Read More

In Stuppiello v. Southwest Credit Systems, L.P., 2018 WL 2015486, at *1–2 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held that a request for contact in a validation letter did not overshadow the 30-day notice. Stuppiello complains of a letter in which the Defendant-Appellee informed him that a $612.32 debt “[was] due in full.” In that… Read More

In Berry v. Locke, 2018 WL 1958851, at *2–3 (Cal.App. 2 Dist., 2018), the Court of Appeal in an unpublished decision dismissed a Rosenthal Act class action arising from 3-day cure-or-quit notices served by a law firm in anticipation of litigation. A statement or writing made in a judicial proceeding is protected activity. (§ 425.16, subd. (e)(1)-(2).) Further, “ ‘communications… Read More

In Hill v. Accounts Receivable Services, LLC, 2018 WL 1864720, at *1–2 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit joined other circuits to adopt a materiality standard for 1692e claims and also rejected the "ipso facto" rule for debt collectors who lose debt collection litigation. In Hahn v. Triumph Partnerships LLC, 557 F.3d 755 (7th Cir. 2009),… Read More