FDCPA (Fed & State)

In Bonanno v. New Penn Financial dba Shellpoint Mtg. Servicing, Case No: 5:17-cv-229-Oc-30PRL, 2017 WL 3219517 (M.D. Fla. July 28, 2017), the District Court found that the FDCPA affords no right to punitive damages. Shellpoint argues Bonanno's punitive damages and injunctive relief claims under the FDCPA should also be dismissed. The Court agrees. Damages exceeding the $1,000 cap in section… Read More

In Grubb v. Green Tree Servicing, LLC, 2017 WL 3191521, at *8–9 (D.N.J., 2017), Judge Wolfson held that a loan servicer's acquisition of servicing rights for an account in default triggered the FDCPA. Post-assignment servicers and owners of debts that were in default at the time of assignment, however, are treated differently under the law. “[A]n assignee may be deemed… 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 Jewsevskyj v. Financial Recovery Services, Inc., --- Fed.Appx. ----2017 WL 2992499 (3rd Cir. July 14, 2017), the Court of Appeals for the Third Circuit rejected an FDCPA class action that was based on the contention that FDCPA notices were given in too-small of a font. Here, although the format is compressed and the font is small, our inquiry focuses on whether… Read More

In Evans v. Portfolio Recovery Associates, LLC, No. 15 C 4498, 2017 WL 2973441 (N.D. Ill, July 12, 2017), Judge Kennelly awarded $43k in attorneys' fees following settlement of an FDCPA case. Katherine Evans sued Portfolio Recovery Associates, LLC for violating the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692e, by sharing Evans's credit information with a credit reporting agency without… Read More

In Balogun v. Winn Law Group, APC, et. al., No. SA CV 17-0796-DOC (JCGx), 2017 WL 2984075 (C.D. Cal. July 12, 2017), Judge Carter dismissed an FDCPA lawsuit premised on a creditor obtaining a judgment in another state and domesticating that judgment in California. First, Plaintiff alleges that the Delaware default judgment was improper because Delaware was not a proper venue for… Read More

In Caruso v. Merchant's Credit, 2017 WL 2972415, at *3 (S.D.Cal., 2017), the District Court found limited standing for a TCPA plaintiff. Further, although unwanted telephone calls can create an actual, albeit intangible, injury sufficient to constitute standing, unwanted telephone calls to a relative—even a mother—do not. See Olney v. Progressive Cas. Ins. Co., 993 F. Supp. 2d 1220, 1225… Read More

In Contreras v. Portfolio Recovery Associates, LLC, 2017 WL 2964012, at *3 (N.D.Cal., 2017), Judge Corley held that discrete abusive acts were not subject to the continuing violation doctrine. The FDCPA also prohibits “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”… Read More

In Group One Development, Inc., v. Bankof Lake Mills, et. al. 2017 WL 2937709, at *3 (S.D.Tex., 2017), Judge Lake held that a commercial debt did not trigger the FDCPA. Plaintiffs allege that they are “consumers” and that defendant Fora is a “debt collector” as defined by the FDCPA. Fora argues, however, that the debt at issue is not a “debt”… Read More

In Gebhardt v. LJ Ross Associates, Inc., 2017 WL 2562106, at *2–3 (D.N.J., 2017), Judge Cooper granted summary judgment for a debt collector who called the debtor after "receiving" a notice of representation letter from the debtor's counsel. The sole contention between the parties, and the only question for us to resolve with this count, is whether Defendant had the… Read More

In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff's fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or… Read More

In Daubert v. NRA Group., LLC, 2017 WL 2836808, at *4–5 (C.A.3 (Pa.), 2017), the Court of Appeals for the Third Circuit found that a medical debt servicer did not meet its burden of demonstrating that it or its assignor received consent. The Sixth Circuit found prior express consent where the plaintiffs gave their cell numbers to a hospital-intermediary in… Read More

In Mei Ma v. Convergent Outsourcing, Inc., et al., 2017 WL 2558439, at *3 (C.D.Cal., 2017), Judge Kronstadt denied a motion to dismiss, finding that the Plaintiff had Spokeo standing. Defendant's analysis is unpersuasive. There is no material difference between receiving an unsolicited call as part of a general marketing effort and receiving one as part of an effort to… Read More

In Henderson v. Santander Consumer USA (S.Ct. No 16-349,) Justice Gorsuch authored the opinion holding that Santander's purchase of the CitiFinancial automobile portfolio did not render it a debt collector under the FDCPA.  Justice Gorsuch's folksy writing offered commentary and dicta that undoubtedly will create more litigation.  For example, in setting the stage for the issue to be decided, Justice Gorsuch… Read More

In Valle v. First National Collection Bureau, Inc., Judge Scola found for the debt collector in a "glassine window" case. Read More

In  Midland Funding, LLC v. Johnson, the SCOTUS held that allowing bankrupt debtors to invoke the FDCPA would upset a “delicate balance” and “authorize a new significant bankruptcy-related remedy in the absence of language in the [Bankruptcy] Code providing for it.”  Instead, barring debt collectors from filing stale claims would require creditors to investigate the merits of affirmative defenses. “The upshot… Read More

In Simpson v. American Credit Acceptance, LLC, 2017 WL 1968284, at *3–4 (E.D.Tenn., 2017), Judge Guyton granted summary judgment to an auto finance company under the FDPCA because the account was not in default at the time of the assignment. The Defendant asserts that it is not subject to the FDCPA because it is not a debt collector. Further, the… Read More

In Rahman v. San Diego Accounts Service, Inc, 2017 WL 1387206 (S.D. Cal. 2017), the District Court found that a debt collector could assert "offset" of the balance owing on the debt to the Plaintiff's Rosenthal Act/FDCPA claim. Defendant’s final affirmative defense is one of “offset.” Specifically, “Defendant contends that any recovery by Plaintiff be offset by the amount owed… Read More

In Kohler v. Greystar Real Estate Partners, LLC, 2017 WL 1198925, at *3 (S.D.Cal., 2017), Judge Houston dismissed a Rosenthal Act case because the Plaintiff had not pleaded that the Defendant collecting renting fell within its terms. This Court agrees with Defendant and finds that Plaintiff's claim fails to establish that Defendant was engaged in the collection of consumer debt.… Read More

In Rodrigo v. Barclays Bank Delaware, 2017 WL 1155373, at *4–5 (S.D.Cal., 2017), Judge Houston dismissed an FDCPA case grounded in allegedly suing on a stale debt and filing a false proof of service in the underlying action. Construing all inferences in the light most favorable to Plaintiff, the Court finds that the state law collection action brought against Rodrigo… Read More