FDCPA (Fed & State)

In Snyder v. Nationstar Mortgage, LLC, 2015 WL 7075622, at *7-8 (N.D.Cal., 2015), Magistrate Judge Corley allowed a FCRA/Rosenthal Act claim past the pleadings stage.  As to the FCRA claim, the Court found that the question of FCRA accuracy is determined past the pleadings stage. To state a claim under the FCRA against...a furnisher of credit information, the [p]laintiff must allege that… Read More

In Benzemann v. Citibank N.A., 2015 WL 7145772, at *4-5 (C.A.2,2015), the Court of Appeals for the Second Circuit found that an FDCPA violation “occurs” for the purposes of the FDCPA's statute-of-limitations provision when a bank freezes a debtor's bank account, not when a debt collector sends a restraining notice to the bank. We recognize that, in the context of FDCPA claims… Read More

In In re Baroni, 2015 WL 6956664, at *12 (9th Cir.BAP (Cal.), 2015), the 9th Circuit BAP found that a debt secured by investment property was not an consumer "debt" under the FDCPA. As a second alternate theory for granting summary judgment against Allana on her FDCPA claim, the bankruptcy court held that the Carmel refinancing loan was not a… Read More

In Mitchell v. LVNV Funding, LLC, 2015 WL 7016343, at *10-11 (N.D.Ind.,2015), Judge Springmann rejected an FDCPA defendant's argument that the FDCPA's $500,000 penalty cap and resulting de-minimus class recovery rendered the class action device an inferior means to adjudicate a mass-action. Despite these limits, the Defendants assert that a class action is not superior because recovery is de minimis where… Read More

In Crider v. Pacific Acquisitions & Associates, LLC, 2015 WL 6689391, at *3 (N.D.Cal., 2015), Magistrate Judge Cousins denied a Rosenthal Act plaintiff's motion for a default judgment on the basis that non-debtors are not protected by the Act. The Criders allege that Pacific violated the RFDCPA by threatening to call Ronnique's supervisor. Cal. Civ. Code. § 1788.17. To qualify for protection… Read More

In Brown v. Van Ru Credit Corp., 2015 WL 6220521, at *2-5 (C.A.6 (Mich.),2015), the Court of Appeals for the Sixth Circuit affirmed the granting of judgment on the pleadings in favor of a debt collector based on the allegation that a voicemail message left violated the FDCPA.  In Brown,  a Van Ru employee called Brown's business and left the following voicemail… Read More

In Fosnight v. LVNV Funding, LLC, 2015 WL 6394334, at *5 (S.D.Ind.,2015), Judge McKinney found that the FDCPA's $500,000 statutory cap was no impediment to class certification. Defendants' main argument as to the superiority of a class action is based on the propriety of the remedy portion of the FDCPA, which provides for a maximum recovery of $1,000.00 for the class… Read More

In Gardner v. Credit Management, LP, here, Judge Failla found for an FDCPA defendant, disagreeing with the Third Circuit's decision in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014).  To the extent that the Douglass Court was concerned with an account number’s potential for disclosing the recipient’s status as a debtor should a third party choose to investigate the number’s meaning, this… Read More

In Finley v. Dynamic Recovery Solutions, LLC, 2015 WL 5728307 (N.D. Cal. 2015), Judge Henderson granted summary judgment to a succession of debt collection agencies based on the staleness of the claim and the lack of imputed knowledge to the latter agencies that the debtor was represented by counsel. The facts were as follows: In June of 2001, banks and… Read More

In Lewis v. Portfolio Recovery Associates, LLC, 2015 WL 5672650, at *8-9 (M.D.Tenn.,2015), Judge Haynes granted summary judgment to an FDCPA defendant on the basis that mere volume of collection calls, without more, did not constitute harassment. Defendant called Plaintiff only nineteen times after May 1, 2012. (Docket Entry No. 37–3 at 30–32). Although Plaintiff disagrees “wholeheartedly” with Defendant's phone records,… Read More

In Camacho v. Jefferson Capital Systems, LLC, 2015 WL 5569082 (N.D.Cal., 2015), Judge Freeman granted an FDCPA Plaintiff's summary judgment motion despite the Defendant's claim of bona fide error protection. According to Defendant, the collection letters sent to Plaintiff actually contained two violations of the FDCPA and RFDCPA. The first violation resulted from Defendant sending a letter directly to Plaintiff in violation… Read More

In Martha A. McNair v. Maxwell & Morgan PC, et al., 2015 WL 5561297, at *4-6 (D.Ariz., 2015), the District Court analyzed how to apply the FDCPA statute of limitations to violations that continue over time. The Supreme Court has adopted a different approach, however, for hostile work environment claims under Title VII. It has explained that such claims: "are different… Read More

In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More

In Ereikat v. Michael & Associates, PC, 2015 WL 4463653 (N.D.Cal., 2015), Judge Corley granted summary judgment to a debt collection law firm whose state court collection action named an "aka" of the debtor listed in the debtor's TU consumer report that also matched the debtor's husband's name. But Defendant is nonetheless entitled to summary judgment because the Court concludes that… Read More

In Beauvoir v. Israel, 2015 WL 4429757 (2d Cir. 2015), the Court of Appeals for the Second Circuit limited the definition of "debt" under the FDCPA to consensual transactions. Although we have not previously had occasion to address whether money owed as a result of theft constitutes a “debt” for purposes of the FDCPA, several of our sister circuits have addressed… Read More

In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations.  Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More

In Consumer Financial Protection Bureau v. Frederick J. Hanna & Associates, P.C., Judge Totenberg rejected a debt collection law firm's constitutional challenge under the Noerr-Pennington doctrine and the equal protection doctrine to the CFPB's authority to bring claims against it.  As to the latter, the District Court found no equal protection violation for placing debt collection law firm's clients on different… Read More

In Evankavitch v. Green Tree Servicing, LLC, 2015 WL 4174441 (3d Cir. 2015), the Court of Appeals for the Third Circuit found that a debt collector bears the burden of proving that its communications with third parties were permitted attempts to confirm or correct location information.    The 3rd Circuit stated that communications with third parties to obtain location information… Read More

In Wheeler v. Premiere Credit of North America, LLC, 2015 WL 222459, at *1-2 (S.D.Cal.,2015), Judge Curiel found that the HEA did not preempt the FDCPA, but did preempt the Rosenthal Act -- as to the claims pleaded.  The facts were as follows. Defendant is an accounts receivable contractor authorized to perform collection activities on defaulted student loans on behalf… Read More

In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765,  (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed.  As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure:  name, company,… Read More