FDCPA (Fed & State)

In Marius D. Popa v. Winn Law Group, APC, et al., 2017 WL 6016567, at *2 (C.D.Cal. 2017), Judge Fischer dismissed an FDCPA class action because of the absence of a "consumer" transaction. In the FAC's First, Second, and Third Causes of Action, Plaintiff alleges violation of Section 1692e(10) of the FDCPA, as incorporated into the Rosenthal Act, prohibiting “[t]he… Read More

In Pavlovich v. Account Discovery Services, 2017 WL 5903354, at *3 (S.D.Cal., 2017), Magistrate Crawford found that an FDCPA Class Action Plaintiff was entitled to net worth discovery despite the fact that class certification had not yet been decided. The Court finds that plaintiff is entitled to financial information regarding defendant, DNF's, financial net worth in 2015, 2016, and at present.… Read More

In Brandt v. Ocwen Loan Servicing, LLC, 2017 WL 5878581, at *8 (E.D.Cal., 2017), the Court allowed a Rosenthal Act claim to proceed despite some calls being placed outside the statute of limitations. Here, according to the allegations of the first amended complaints, the calls made before the filing of plaintiffs' actions on the respective dates in May 2017 reflect a continuing… Read More

In Arias v. Gutman, Mintz, Baker & Sonnenfeldt, LLP, 2017 WL 5330081 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit did not adopt the argument adopted by other courts that the FDCPA's "general" prohibitions cannot provide an additional basis for liability when there already is a "specific" prohibition set forth elsewhere in the FDCPA. Franklin Arias claims… Read More

In Hedayati v. The Perry Law Firm, 2017 WL 4864491, at *7 (C.D.Cal., 2017), Judge Carter held a bench trial regarding the Plaintiff's claim that the defendant wrongfully attempted to collect a debt from him that, in reality, was owed by his brother.  Judge Carter found no false statements made to the Plaintiff, and imposed a reality check on the… Read More

In Spuhler v. State Collection Services, Inc., 2017 WL 4862069, at *7–8 (E.D.Wis., 2017), Judge Joseph certified an FDCPA class, rejecting the argument that the class, as defined, was too narrow and would result in multiple classes (in defiance of the $500k/1% net worth limitation) where the debt collector used the same offending letter for various clients. State Collection's first… Read More

In Montegna v. Ocwen Loan Servicing, LLC, 2017 WL 4680168, at *8–9 (S.D.Cal., 2017), the District Court found that a Rosenthal Act claim survived a statute of limitations challenge based on the plaintiff's allegation of a "continuing violation". Second, as for Plaintiff's claim under the Rosenthal Act, the applicable statute of limitations provides a plaintiff a year from an alleged violation to… Read More

In Muhammad v. Reese Law Group, APC,  2017 WL 4557194, at *5 (S.D.Cal., 2017), Judge Anello held that alleged mispresentations made in a debt collection complaint were barred by the Rooker-Feldman doctrine. Here, the Court finds Plaintiff's misrepresentation and over-collection claim is barred by the Rooker-Feldman doctrine. Plaintiff argues she “does not challenge the validity of the 2001 money judgment,” thus Rooker-Feldman is… Read More

In Lundstedt v. I.C. System, Inc., 2017 WL 4281057, at *2–3 (D.Conn., 2017), Judge Meyer allowed an FDCPA claim to proceed based on the call pattern alleged in the Complaint. [D]efendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires.… 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 Simpson v. Safeguard Properties, LLC., 2017 WL 4310674, at *4–7 (N.D.Ill., 2017), Judge Gottschall denied summary judgment to a door-hanger company who claimed that it was not subject to the FDCPA. The FDCPA “is not aimed...“at companies that perform ministerial duties for debt collectors, such as stuffing and printing the debt collector's letters.” White v. Goodman, 200 F.3d 1016, 1019… Read More

The CFPB just issued its Summer Supervisory Highlights regarding complaints lodged against debt collection, a copy of which can be found here.  The CFPB notes that its examiners' reviewed numerous companies, both within the united states and from foreign countries, and highlighted the following types of common violations: Unauthorized communications with third parties False representations made to authorized credit card users… Read More

Severson & Werson published an article entitled Hyman & Walser-Jolly, The Effect of the FDCPA's "Consumer" Limitation on Class Certification:  Do Courts Apply Different Standards in Individual and Class Actions", 70 Conf. Cons. Fin. L. Q. 172 (Summer 2017).  A copy of the article can be found here.     Read More

In Forto v. Capital One Bank, N.A., No. 14-cv-05611-JD (MEJ), 2017 WL 4168529 (N.D. Cal. Sept. 20, 2017), Magistrate Judge James noted the different standards applicable to “reverse” attorneys fees under the FDCPA and the Rosenthal Act, finding that “reverse” attorneys’ fees were not due a debt collector under the FDCPA but were due the debt collector under the Rosenthal… Read More

In Hart v. Credit Control, LLC, 2017 WL 4216029, at *3–4 (11th Cir. 2017), the Court of Appeals for the 11th Circuit provided guidance on leaving voicemails for debtors: We find that this voicemail, and other voicemails like it, constitute a communication within the meaning of the FDCPA. Specifically, we hold that a voicemail can, and will, be considered a communication… Read More

In Chaiwong v. Hanlees Fremont, Inc., 2017 WL 3838106 (N.D. Cal. Sept. 1, 2017), Judge Gilliam dismissed a Rosenthal Act/UCL claim filed against an automobile lender by a consumer and the dealer to whom the customer traded in their vehicle. The following facts are undisputed unless otherwise noted. Plaintiff leased a Chevrolet Equinox from Fremont Chevrolet on June 22, 2010.… Read More

In Afewerki v. Anaya Law Group, 2017 WL 3567829, at *4–5 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit held that a misstatement of the debt in a debt collection complaint was material. We agree and conclude that Anaya Law Group's $3,000 overstatement of the principal due in the state court complaint,2 exacerbated by the statement of an… Read More

In Goode v. Adler Wallach Associates, Inc., NO. 17-261, 2017 WL 3437900, at *3 (E.D.Tex., August 10, 2017), the District Court adopted the majority rule that the FDCPA does not provide injunctive relief as a remedy for private litigants. In light of these holdings, this Court declines to depart from the majority rule that the FDCPA does not provide equitable… Read More

In McWhorter v. Ocwen Loan Servicing, LLC, No.: 2:15-cv-01831-MHH, 2017 WL 3315375 (N.D. Ala. August 3, 2017), Judge Haikala found that a defendant’s charging of fees associated with telephonic Speedpay fees stated a claim under the FDCPA. When Mr. McWhorter and Mr. Fielder made loan payments to Ocwen online and over the telephone, Ocwen and Western Union charged convenience fees,… Read More

On July 25, 2017, the CFPB issued a Compliance Bulletin cautioning against misrepresenting and adding convenience fees to pay-by-phone payment options.  A copy of the bulletin is here and our take on the CFPB's bulletin is here.   For further questions on convenience fees, please contact Erik Kemp at ek@severson.com or Scott Hyman at sjh@severson.com Read More