FDCPA (Fed & State)

In Consumer Financial Protection Bureau v. CashCall, Inc., 2015 WL 9591569, at *1-2 (C.D.Cal., 2015), Judge Walter said that the CFPB was not alleging an ipso facto rule, namely that a state court violation automatically constitutes a UDAAP violation.  Accordingly, Judge Walter allowed the Complaint to survive a pleadings challenge. Defendants' primary argument for dismissal is based on a mischaracterization of the… Read More

In CFPB v Hanna-Stipulated Order, the CFPB reached a settlement with a large debt collection law firm.  According to the CFPB: The CFPB lawsuit had alleged that the defendants rely on deceptive court filings and faulty evidence to churn out lawsuits. The order, if approved by the court, would bar the firm and its principal partners from illegal debt-collection practices,… Read More

In Black v. Autovest, LLC, 2015 WL 9461484, at *4 (D.Ariz., 2015), Judge Boyle denied a debt collection firm's motion to dismiss an FDCPA claim grounded in collection of post-repossession deficiency -- even though the bank already had a judgment against the FDCPA Plaintiff on the debt owing.  The District Court found the FDCPA action not barred by Rooker-Feldman. Defendants rely… Read More

In Berry v. ARS National Services, Inc., 2015 WL 9315993, at *3 (E.D.Pa., 2015), Judge Restrepo extended the Douglass decision beyond account numbers to include barcodes being visible on dunning letter envelopes as well. Initially, it is noted that in Douglass, the Third Circuit held that “§ 1692f(8)'s prohibition on language and symbols applies to markings that are visible through a transparent… Read More

In Palmer v. Credit Collection Services, Inc., 2015 WL 9315986, at *2 (E.D.Pa., 2015), Judge Bartle granted summary judgment to an FDCPA plaintiff in a Douglass-type glassine window case, extending Douglass to prohibiting barcodes visible on dunning letters. The plaintiff here maintains that Douglass is directly on point and supports her summary judgment motion. She equates the visibility of the debtor's account… Read More

In Bauman v. Bank of America, N.A., 2015 WL 9310136, at *3-4 (6th Cir. 2015), the Court of Appeals for the Sixth Circuit held that a creditor was not precluded from bringing a debt collection action because it had failed to bring it previously in response to the debtor's FDCPA Action. Although we have not squarely addressed whether a counterclaim to… Read More

In Lindblom v. Santander Consumer USA, Inc., 2015 WL 8483118, at *1 (E.D.Cal., 2015), Judge O'Neill granted summary judgment to an automobile finance company against claims arguing that its fees associated with "SpeedPay" were not permissible. Plaintiff purchased a car, which she financed with a loan that Santander eventually began to service. FAC at ¶¶ 1-2. Plaintiff made payments on the… Read More

In Parker v. Capital One Auto Finance, et. al. 2015 WL 7864182, at *2 (S.D.Ind., 2015), Judge Magnus-Stinson held that auto finance companies collecting their own debts were not subject to the FDCPA. The FDCPA . . .“applies only to ‘debt collectors' seeking satisfaction of ‘debts' from ‘consumers'; it does not apply to ‘creditors.’ ” McKinney v. Cadleway Properties, Inc., 548 F.3d 496,… Read More

In Peak v. Professional Credit Service, 2015 WL 7862774, at *5-6 (D.Or., 2015), Judge Aiken granted summary judgment to a debt collector who was sued by a debtor for a collection v/m to which the debtor allowed access to a third party. Finally, defendant contends the voicemail messages were not communications “with” third parties because it had no reason to suspect… Read More

In Pirrone v. NCO Financial Systems, Inc., 2015 WL 7766393, at *1 (E.D.Pa., 2015), Judge Beetlestone followed the Douglass decision, finding that a QR code was the same as an account code that the FDCPA prohibited from being seen on or through the envelope. Plaintiff's claims are based on Section 1692f(8) of the FDCPA, which prohibits using “unfair or unconscionable means to… Read More

In Prescott v. Seterus, Inc., 2015 WL 7769235, at *3-4 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit held that a reinstatement letter that required the debtor to pay estimated future attorneys' fees as a condition of reinstatement violated the FDCPA because the demand was inconsistent with the security agreement. The security agreement does obligate Prescott to pay… Read More

In Johnson v. Santander Consumer USA Inc., 2015 WL 7567483, at *2-3 (D.Ariz., 2015), Judge Rayes ordered an FDCPA case to arbitration under a standard Arizona Automobile RISC. Both the RISC and the Amendment contain arbitration provisions that clearly and unmistakably delegate questions of arbitrability to the arbitrator. The RISC requires arbitration for any disputes “in contract, tort, statute or otherwise… Read More

In Ditlevson v. Legal Express, Ltd., 2015 WL 7454147, at *1-2 (N.D.Cal., 2015), Judge Chesney found that a Rosenthal Act defendant must plead specific facts to support a bona fide error affirmative defense, and cannot plead the litigation privilege as an affirmative defense at all. In the Third Affirmative Defense, Legal Express alleges that “any violation was unintentional and resulted despite the… Read More

In Beider v. Retrieval Masters Creditors Bureau, Inc., 2015 WL 7454119 (E.D.N.Y., 2015), Judge Hurley dismissed an FDCPA claim grounded in Plaintiff's claim that the Defendant debt collector did not collect in its "true name" because it collected in a licensed "DBA", the name of which suggested specialization in collection of the type of debts owed. Plaintiff claims that defendant… Read More

In Litt v. Portfolio Recovery Associates LLC, 2015 WL 7351781, at *7-8 (E.D.Mich. 2015), Judge Borman found that the debtor had standing, and a valid claim, to sue for 200+ "wrong number" calls to the debtor's parents, even if most of them went unanswered.  The District Court found that the Plaintiff should be entitled to summary judgment on his claim for violation… Read More

In Nall v. Allied Interstate, LLC, 2015 WL 6529233, at *1-2 (S.D.Ind. 2015), Judge Baker allowed net worth discovery in an FDCPA class action as relevant towards the propriety of class certification. The cases cited by Plaintiff support the requested discovery. See Green, 997 F.Supp.2d at 935–36 (finding net worth helpful in deciding class certification). Net worth is helpful in… Read More

In Tripp v. Berman & Rabin, P.A., 2015 WL 5704075, at *7-10 (D.Kan. 2015), Judge Crabtree rejected the argument that the FDCPA's $500,000 cap prevents certification of an FDCPA class action. Defendants contend that plaintiff cannot carry her burden on this requirement. Defendants argue that the statutory damage cap that applies to a FDCPA class action combined with the large… Read More

In Brooks v. Niagara Credit Solutions, Inc., 2015 WL 6828142, at *1 (D.Kan. 2015), Judge Lungstrom declined to follow the Douglass glassine window case. As will be explained, the court declines to follow the Douglass opinion (which, of course, it is not bound by) and concludes that defendant's use of plaintiff's account number through the envelope's glassine window does not violate the… Read More

In Park v. ARS National Services, Inc., 2015 WL 6579686, at *5 (D.N.J., 2015), Judge Wigenton followed the Third Circuit's Douglass decision. Defendant's argument that the FDCPA does not apply to the barcode at issue because other laws and regulations prohibit third parties from scanning it is unpersuasive. Neither the text nor the underlying purposes of the FDCPA provide any basis… Read More

In Janson v. Katharyn B. Davis, LLC, 2015 WL 7253244, at *2 (C.A.8 (Mo.),2015), a renter lost a state court collection action, and then sued in federal court claiming that an affidavit filed filed in the state court action was false; namely, because it asserted that he owed rent.   How this side-stepped the Rooker-Feldman doctrine escapes me, but the 8th… Read More