FDCPA (Fed & State)

In Le v. Sunlan Corporation, 2014 WL 296032 (N.D.Cal. 2014), Judge Breyer awarded over $47,000 in attorneys' fees and costs to a Debt Buyer who had to defend an FDCPA claim grounded on a claim that Financial Code section 22340 (which applies to real estate backed loans) prohibited the sale of a CashCall loan.  "The Court will not revisit its holding that section… Read More

In Riding v. Cach LLC, 2014 WL 198764 (C.D.Cal. 2014), Judge Lew found an FDCPA claim premised on collection of a state court lawsuit only partially barred by the Rooker-Feldman doctrine. The Court notes that Plaintiff provides different grounds as the basis for his FDCPA claims. Specifically, Plaintiff's FDCPA §§ 1692d, 1692e, and 1692f claims are based on (1) Defendants' pursuit of… Read More

In Himes v. Client Services Inc., --- F.Supp.2d ----, 2014 WL 24258 (D.N.H. 2014), Judge Barbadoro rejected the contention that the FDCPA requires production of sworn account ledgers during the validation process. Finally, Himes alleges under § 1692g(b) that Schiff's method of validation is insufficient because the defendants never produced a sworn accounting ledger, affidavit, or signed loan agreement to prove… Read More

In Farber v. JPMorgan Chase Bank N.A., 2014 WL 68380 (S.D.Cal. 2013), Judge Curiel found that mortgage servicers were subject to the Rosenthal Act, but found that only certain conduct might be actionable.  The facts were as follows: In September 2010, Farber sold the Property by way of a “short sale” with Defendant receiving approximately $1,139,345.00. (Id. ¶ 21.) In… Read More

In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More

In Bradley v. Franklin Collection Service, Inc.--- F.3d ----, 2014 WL 23738 (11th Cir. 2014), the Court of Appeals for the Eleventh Circuit found that charging a percentage-based collection fee violates the FDCPA unless the instrument creating the obligation allowed it: Section 1692f prohibits unfair or unconscionable means of collection. Subsection (1) of this section specifically prohibits “collection of any amount… Read More

In Smith v. Hunt & Henriques, 2013 WL 6141416 (N.D.Cal. 2013), Judge Lloyd granted summary judgment to a debt collection law firm who properly validated a debt following a debtor’s demand for validation. H & H says that it is a law firm that collects outstanding financial obligations referred to it by its clients. (Dkt. 48–1, Hunt Decl. ¶ 2).… Read More

"The way in which proposed rules might define “collectors” would be critical to determining the scope of the proposed rules. The Bureau is especially interested in information bearing on whether a rule under the Dodd-Frank Act would be useful to protect consumers from the conduct of creditors collecting in their own names on debts arising out of consumer credit transactions." … Read More

In Ajib v. Financial Assistance, Inc., 2013 WL 5553249 (E.D.Cal. 2013), Judge Boone addressed two claims commonly raised by in pro per plaintiffs:  that defendants violated the FTC Act and that an injunction to enjoin further FDCPA violations is warranted.  Judge Boone found neither claim viable. Plaintiff alleges that the actions of the defendants were in violation of the FTCA… Read More

In Todd v. Collecto, Inc., --- F.3d ----, 2013 WL 5452071 (2013), the Court of Appeals for the Seventh Circuit held that the FDCPA protects third person/non-debtors in only limited circumstances.  The district court had dismissed Todd's complaint for failure to state a claim for relief, finding that Todd lacks standing to bring the FDCPA claims because he is not… Read More

A Glendale, California-based debt collector  will pay $1 million to settle FTC charges that the defendants violated federal law.  This is the first FTC action against a debt collector who used text messaging to attempt to collect debts in an unlawful  manner.  The message here, according to the FTC, is that a text message is debt collection "communication" under the FDCPA that must include… Read More

In Black v. Midland Credit Management, Inc., 2013 WL 5140181 (W.D.Wash. 2013), Judge Leighton found that a debtor’s failure to list her FDCPA claim in her bankruptcy schedules estopped her from later attempting to bring the FDCPA claim post-discharge.  Judge Leighton explained: Judicial estoppel “is an equitable defense that precludes a party from gaining an advantage by as-serting one position,… Read More

In Davis v. Hollins Law, --- F.Supp.2d ----, 2013 WL 4863849 (E.D.Cal. 2013), Judge Karlton held that the fact that a debtor took out a business card was not dispositive of the (in)applicability of the FDCPA and Rosenthal Act.  In Davis, it was indisputed that the debtor incurred the debt on a business credit card, that the credit card was… Read More

In Lyons v. Michael & Associates, 2013 WL 4680179 (S.D.Cal. 2013), Judge Burns refused to apply the ‘discovery rule’ to toll the FDCPA statute of limitations with regard to claims arising from an underlying debt collection lawsuit. A FDCPA claim must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The parties… Read More

In Holmes v. Electronic Document Processing, Inc., 2013 WL 4456544 (N.D.Cal. 2013), Judge Koh found that an FDCPA/Rosenthal Act claim predicated on ‘sewer service’ of process was not protected by the litigation privilege. Next, Defendants argue that Plaintiff's claim under the Rosenthal Act is barred by California's litigation privilege, California Civil Code § 47(b). Mot. to Dismiss at 10. Section… Read More

In Caudillo v. Portfolio Recovery Associates, LLC, 2013 WL 4102155 (S.D.Cal. 2103), Judge Gonzalez found that a debt collector’s failure to identify the original creditor a state-court debt collection complaint was deceptive. This Court and others have repeatedly held that a debt collection complaint that “fail[s] to identify ... the original creditor, is both deceptive and material under the least… Read More

In Holmes v. NCO Financial Services, Inc., --- Fed.Appx. ----, 2013 WL 4376585 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit reversed the district court’s grant of summary judgment to a 4th-in-line debt collector who purportedly communicated information to the consumer reporting agencies without also reporting that it was disputed. The FDCPA provides that a debt collector… Read More

In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring.  The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More

In Do v. Hollins Law, P.C., 2013 WL 4013659 (N.D.Cal. 2013), a debt collection law firm filed an anti-SLAPP motion against the Plaintiff arising from the Plaintiff’s Rosenthal Act claim.  Judge White denied the anti-SLAPP motion, finding that the law firm’s activities were not protected by the litigation privilege and the law firm was, in fact, subject to the Rosenthal… Read More

In Alonso v. Blackstone Financial Group LLC, 2013 WL 3992122 (E.D.Cal. 2013), Magistrate Judge Boone found that payment of an otherwise legally owed obligation that was collected on by a means prohibited by the FDCPA was a “damage” under the FDCPA. Following the July 24, 2013 hearing, the parties were granted leave to file supplemental briefing regarding whether the $100… Read More