FDCPA (Fed & State)

In Bishop v. Ross Earle & Bonan, P.A., 2016 WL 1169064, at *3 (11th Cir. 2016), the Court of Appeals for the 11th Circuit held that communications between a debt collector and debtor's counsel counsel are subject to the FDCPA, but still are subject to the least sophisticated consumer standard. We join the Third, Fourth, and Seventh Circuits in holding that… Read More

In Henson v. Santander Consumer USA, Inc., 2016 WL 1128419, at *1 (4th Cir. 2016), the Court of Appeals for the 4th Circuit affirmed dismissal of an FDCPA case against Santander Consumer USA, who had purchased CitiFinancial's defaulted post-repossession debt as part of a bundle of receivables. When arguing from the definition of creditor, they overlook the fact that the exclusion… Read More

In Datta v. Asset Recovery Solutions, LLC, 2016 WL 1070666, at *7-10 (N.D.Cal., 2016), Judge Koh rejected the argument that the FDCPA's $500,000 cap prevented certification of an FDCPA/glassine window case. . . . the Court observes that, as a general matter, courts routinely certify class actions where monetary recovery would be small. . . . Second, the efficacy of a single… Read More

In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows: On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued… Read More

In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff's motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination. Plaintiff's interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary… Read More

In Ordinario v. LVNV Funding, LLC, 2016 WL 852843, at *1-2 (S.D.Cal., 2016), Judge Burns denied summary judgment to an FDCPA plaintiff because he had failed to demonstrate that his allegedly personal debts were not commercial. The FDCPA and RFDCPA apply only to consumer debt, not business loans. See Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir.… Read More

In Vilinsky v. Phelan Hallinan & Diamond, PC, 2016 WL 805970, at *2 (C.A.3 (N.J.),2016), the Court of Appeals for the Third Circuit found that a notice of assignment sent directly to a represented debtor did not violate the FDCPA because it was not in connection with the collection of the debt. The issue in this case is whether a… Read More

In Reynolds v. Credit Management Services, Inc., 2016 WL 756469, at *3-4 (D.Neb., 2016), Judge Strom denied summary judgment to a debt collection agency owner on the basis that a triable issue of fact existed on whether he met the FDCPA's definition of "debt collector". The Court here notes a split of authority between the United States Courts of Appeals… Read More

In Bedrosian v. State Collection Service, Inc., 2016 WL 743390, at *2-3 (E.D.Mo., 2016), Judge White dismissed an FDCPA Plaintiff's claim, saying that simply responding to the Plaintiff's questions about the possibilities of what could happen if the Plaintiff did not pay her debt did not constitute an illegal threat. Defendant contends that Plaintiff fails to state a claim under Section… Read More

In Diaz v. First Marblehead Corp., 2016 WL 736361, at *7 (11th Cir. 2016), the Court of Appeals for the 11th Circuit reversed the trial court's ruling imposing reverse attorneys' fees against a debtor. Although there was no evidence that Diaz, herself, had acted in bad faith or for the purpose of harassment when she brought the lawsuit, the magistrate… Read More

In Gallego v. Northland Group Inc., 2016 WL 697383, at *3-4 (C.A.2 (N.Y.),2016), the Court of Appeals was called on to review the District Court's denial of class certification in an FDCPA class action.  The Court of Appeals first expounded on whether there was a substantial federal question, because the FDCPA claim was grounded in a violation of state law --… Read More

In  Shular v. LVNV Funding LLC, 2016 WL 685177, at *9-10 (S.D.Tex., 2016), Judge Lake denied class certification for almost all reasons applicable to FRCP Rule 23, but one of which was the inability to determine commonality or who was in the class because of questions whether the debts were "personal" in nature.  The class action arose from Plaintiff's contention… Read More

In Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 2016 WL 536864, at *1-2 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit affirmed dismissal of a law firm's FDCPA complaint because the debt was commercial in nature. The FDCPA does not cover “actions arising out of commercial debts.” Goldman v. Cohen, 445 F.3d 152, 154 n.… Read More

In Fosnight v. Convergent Outsourcing, Inc., 2016 WL 317678, at *2-3 (S.D.Ind., 2016), Judge McKinney certified an FDCPA class action grounded on a purportedly defective debt validation letter.  The Court rejected the argument that individual issues predominated because questions might arise whether the debt validation letter was the initial communication. Defendants primarily argue that individual issues of fact preclude a… Read More

In Dykes v. Portfolio Recovery Associates, LLC., 2016 WL 346959, at *3-4 (E.D.Va., 2016), Judge Cacheris denied class certification in an FDCPA class action due to lack of ascertain ability. The class proposed in Plaintiff's Memorandum in Support of her Motion for Class Certification includes recipients of PRA's Spanish-language dunning letters who actually speak Spanish and indicated to PRA that… Read More

In Cox v. Sherman Capital LLC, 2016 WL 274877, at *4-6 (S.D.Ind., 2016), Judge Pratt properly found that a proposed class action was an impermissible fail-safe class.  The allegations were as follows: As a result of securitization, the Plaintiffs contend that LVNV did not own their debts based on three different, but related, arguments. First, as explained above, Plaintiffs argue… Read More

In Buckley v. AFNI, Inc., 2016 WL 70847, at *2-3 (S.D.Ind., 2016), Judge Baker found that a debt collector violated the FCRA and the FDCPA when it initiated collection activities against a bankrupt debtor.  First, the District Court found that the debt collector's pulling of a credit report violated the FCRA because no debt existed post-bankruptcy. Both parties have moved for summary judgment… Read More

In Kostik v. ARS National Services, Inc., 2016 WL 69904, at *2-4 (M.D.Pa. 2016), Judge Nealon declined to certify a Douglass-type FDPCA case for interlocutory review, believing that there is no substantial grounds for a difference of opinion. Defendant claims that there are substantial grounds for difference of opinion as to whether the disclosure of a barcode allegedly embedded with plaintiff's… Read More

In Youssofi v. Allied Interstate LLC, 2016 WL 29625, at *2-3 (S.D.Cal., 2016), Judge Curiel struck an FDCPA defendant's assertion of FDCPA pre-emption over the Rosenthal Act. Plaintiff argues that these affirmative defenses fail as a matter of law and cites to the holding in Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011). Defendant opposes contending… Read More

In Garfield v. Ocwen Loan Servicing, LLC, 2016 WL 26631, at *2-3 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit said that FDCPA claims grounded in post-discharge misconduct are independent of the bankruptcy code. Where, as in this case, the later statute is the Bankruptcy Code, a distinction must be made between claims brought under the earlier statute during the… Read More