FDCPA (Fed & State)

In Carlin v. Davidson Fink, LLP, 2017 WL 1160887, at *5–7 (C.A.2, 2017), the Court of Appeals for the Second Circuit said that a letter that sought unspecified “fees, costs, additional payments, and/or escrow disbursements” that were not yet due at the time the statement was issued violated the FDCPA. The remaining inquiry is whether Davidson Fink adequately stated the… Read More

In Pantoja v. Portfolio Recovery Associates, LLC, 2017 WL 1160902, at *3–7 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that a debt purchaser's letter collecting on 20-year old debt violated the FDCPA. We start with law that we believe is settled. First, a debt collector violates the Act by suing to collect a consumer debt… Read More

In Verdun v. Fidelity Creditor Service, Inc., 2017 WL 1047109 (S.D. Cal. 2017), Magistrate Judge Bartick granted partial summary judgment to a debt collector that its letter was not misleading under the FDCPA or Rosenthal Act. Here, Defendant included in its letter to Plaintiff a sentence summarizing section 1788.21 of the California Civil Code. The sentence read, "The Rosenthal Act, California Civil Code… Read More

In Lauren Cummings v. Jaburg & Wilk, P.C., 2017 WL 977574, at *4–5 (D.Ariz., 2017), the District Court granted summary judgment under the FDCPA because the misstatement of the debt was not material under 9th Circuit precedent. The Court finds that Ninth Circuit precedent controls the facts of this case in favor of Defendant. Under the FDCPA, § 1692e prohibits… Read More

In Hinderstein v. Advanced Call Center Technologies, 2017 WL 751420 (C.D. Cal. 2017), Magistrate Judge Bristow found that the number and pattern of calls to a debtor did not violate the FDCPA. Courts also have found that “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the… 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 Scally v. Ditech Financial, LLC, 2017 WL 371996, at *5–6 (S.D.Cal., 2017), Judge Hayes dismissed an FDCPA class action arising out of collection of discharged debt. In this case, the first amended complaint alleges that Defendant sent letters to the Plaintiff attempting to collect on a discharged debt which contain various statements “falsely implying that the debt remained viable.”… Read More

In Petley v. San Diego County Credit Union, 2017 WL 385742, at *4–5 (S.D.Cal., 2017), Judge Miller rejected the application of California's litigation privilege to Rosenthal Act claims arising out of filing actions on time-barred debts. SDCCU argues that the rule set forth in Komarova is limited to cases where the two statutes conflict, and that no such conflict exists… Read More

In Mashiri v. Epsten Grinnell & Howell, 2017 WL 127565, at *4 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit weighed in on the split of authority amongst the circuit courts, finding that delinquent HOA assessments are "debts" under the FDCPA. The contents of the May Notice plainly belie Epsten's contention that it did not attempt to… Read More

In Lyudmila Maronyan v. Financial Credit Network Inc., 2017 WL 57835, at *3 (C.D.Cal., 2017), Judge Wilson allowed an FDCPA claim to proceed based on pleadings in the state court collection action. FCN's statements regarding its entitlement to attorneys' fees in the state court complaint may in fact be misleading to the least sophisticated debtor. Although one part of FCN's… Read More

In Horowitz v. GC Services Limited Partnership, 2016 WL 7188238, at *9 (S.D.Cal. 2016), Judge Anello granted summary to an FDCPA plaintiff as to voicemail messages left that failed to give meaningful disclosure. However, it does not follow that Defendant had to either leave a voicemail lacking the disclosures required by section 1692d(6) or leave a voicemail that violates section… Read More

In Miran v. Convergent Outsourcing Inc., 2016 WL 7210382, at *5 (S.D.Cal., 2016), Judge Battaglia found that a debt collector's offer letter on an out-of-statute debt did not violate the FDCPA because it was neither deceptive nor threatened to sue. Finding that the issue of novation is a factual question undeterminable by the evidence presented by Plaintiff, the Court looks… Read More

In Ruvalcaba v. Ocwen Loan Servicing, LLC, 2016 WL 7178855 (S.D. Cal. 2016), the Court held that billing statements were permitted to be sent to a debtor despite being represented by counsel. Plaintiff alleges that Ocwen violated both 15 U.S.C. § 1692c (incorporated by reference in the California FDCPA by California Civil Code § 1788.17) and California Civil Code §… Read More

In Deaguero v. Mountain Lion Acquisitions, Inc., 2016 WL 7030364 (2016), the California Court of Appeal in an unpublished decision found that the CFL does not prohibit the sale of debt to an unlicensed entity. Deaguero's claims depend upon his construction of section 22340, subdivision (a). Specifically, his claim that Mountain Lion violated the FDCPA and RFDCPA is based on the… Read More

In Munoz v. California Business Bureau, Inc., 2016 WL 6517655 (E.D. Cal. 2016), Magistrate Judge McAuliffe found that a debt subject to the Rosenthal Act did not lose its character because it was settled, nor did the settle end the debtor’s counsel’s representation so as to allow direct communication with the debtor by the debt collector’s counsel.  First, Judge McAuliffe… Read More

The Conference on Consumer Finance Law just published two articles on the FDCPA by Severson & Werson. Hyman & Kenney, Judicial Isolation of the Third Circuit’s “Glassine Window” FDCPA Decision in Douglass v. Convergent Outsourcing, 69 Conf. Cons. Fin. L. Q. 142 (Fall 2016):  here  Hyman & Kenney, The Effect of the FDCPA’s Class-Action Penalty Cap on Class Certification, 69… Read More

In Annunziato v. Collecto, Inc., 2016 WL 5407871, at *15–16 (E.D.N.Y. 2016), Judge Spatt held that a debt collector's goodwill is included in calculating the defendant's net worth under the FDCPA's class action penalty calculus.  This is contrary to the 7th Circuit's decision in Sanders v. Jackson, 209 F.3d 998, 1001 (7th Cir. 2000), which held that goodwill was not to… Read More

On September 16, 2016, Governor Jerry Brown signed Assembly Bill (“A.B.”) No. 1723 entitled the Identity Theft Resolution Act (the “Act”) into law.  The Act amended Sections 1785.16.2 and 1788.2 of the California Civil Code related to debt collection, which will become effective on January 1, 2017.  The Act is a rare display of political bipartisanship as it was passed… Read More

In Lombana v. Green Tree Servicing, LLC, 2016 WL 4967641, at *2 (C.D.Cal., 2016), Judge Gandhi granted summary judgment to a Loan Servicer on the grounds that the Account was not in default at the time of acquisition. Here, Defendant contends that it does not fall within the definition of a “debt collector,” and therefore cannot be liable for any… Read More

In Daugherty v. Convergent Outsourcing, Incorporated, 2016 WL 4709712 (C.A.5 (Tex.), 2016), the Court of Appeals for the Fifth Circuit allowed an FDCPA claim to proceed based on a collection letter for a time-barred debt, even where no litigation is falsely threatened. There is an apparent conflict in the circuits as to whether a collection letter offering “settlement” of a… Read More