In People v. Persolve, (2013) 2013 DAR 10915, the Court of Appeal held that the litigation privilege is not a defense to a UCL action brought to enjoin business practices made unlawful by a statute more specific than Civil Code 47(b). So, in this case, the People stated a good UCL claim against a debt collector for alleged unlawful business practices… Read More
The Fair Debt Buying Practices Act of 2013 (Senate Bill 233) was signed by Governor Brown last month. The Act will apply to debts sold or resold on or after Jan. 1, 2014. Purpose: The Act will regulate the activities of persons and entities that purchase delinquent or charged-off consumer debt by requiring specific documentation to be maintained by the industry. … Read More
In Smith v. Progressive Financial Services, Inc., 2013 WL 3995004 (D.Or. 2013), Judge McShane found that a student loan taken out to attend an aviation academy was still a ‘consumer’ debt under the FDCPA. Contrary to defendant's argument, “education” encompasses something broader than mere investment in pursuit of profit. Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347… Read More
In Tait v. Asset Acceptance, LLC, 2013 WL 3811767 (C.D.Cal. 2013), Judge Olguin found an FDCPA claim barred by the Rooker-Feldman doctrine where the Plaintiff claimed that he was not served with underlying state court collection action. However, in entering default judgment against plaintiff, the state court expressly found that plaintiff was served with a copy of the summons and… Read More
In Lawton v. Cavalry Investments LLC, 2013 WL 3929707 (C.D.Cal. 2013), Judge Tucker excluded a law firm from the RFDCPA: "Plaintiff alleges that Defendants violated § 1788.15(a) of the Rosenthal Act by “filing an illegal lawsuit” against Plaintiff. (Compl.¶ 16.) Lawyers are expressly excluded from the Rosenthal Act's definition of “debt collector.” Cal. Civ.Code § 1788.2(c) (“The term ‘debt collector’… Read More
In Boon v. Professional Collection Consultants, --- F.Supp.2d ----, 2013 WL 3973084 (S.D.Cal. 2013), Judge Huff found that California’s litigation privilege barred an RFDCPA claim based on filing a collection lawsuit that, purportedly, was barred by the statute of limitations. Moreover, the Court concludes that California's litigation privilege bars Plaintiff's RFDCPA claims. The California litigation privilege applies to any publication… Read More
In Heathman v. Portfolio Recovery Associates, LLC, 2013 WL 3746111 (S.D.Cal. 2013), Judge Gonzalez stated that a debt purchaser’s failure to identify the original creditor by name in the debt purchaser’s form debt collection complaint in state court violated the Rosenthal Act because it render the complaint deceptive and misleading to the least sophisticated consumer. “To preserve the protections and… Read More
The CFPB published two bulletins today purporting to hold all entities under its jurisdiction accountable for unlawful debt collection practices. The first bulletin, here, proclaims that “It doesn’t matter who is collecting the debt — unfair, deceptive, or abusive practices are illegal", and emphasizes that both third-party collectors and creditors are responsible. The CFPB will be examining (1) Collecting additional amounts, such as interest,… Read More
In Schlegel v. Wells Fargo Bank, NA, --- F.3d ----, 2013 WL 3336727 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit held that a mortgage lender was not a debt collector under the FDCPA. The Schlegels next argue that their complaint adequately alleged that Wells Fargo meets the second definition of debt collector, which as noted above… Read More
In Doyle v. Midland Credit Management, Inc., --- F.3d ----, 2013 WL 3242148 (2d Cir. 2013), the Second Circuit Court of Appeals found that no formal Rule 68 offer was required to moot a Plaintiff’s FDCPA case when the Defendant made an offer that would have fully satisfied the Plaintiff’s damages. Doyle contends that the district court erred in dismissing… Read More
In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses. Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More
In Laguilles v. Time Warner , the Appellate Division of the Los Angeles County Superior Court found that the Rosenthal Act's language allowing claims to be filed "in a court of competent jurisdiction" (Civ. Code 1788.30(f)) did not prohibit enforcement of an arbitration clause on the basis that arbitration would have resulted in waiver of a statutory right. Read More
In Lembach v. Bierman, --- Fed.Appx. ----, 2013 WL 2501752 (4th Cir. 2013), the 4th Circuit Court of Appeals held that allegedly falsely executed foreclosure documents were not actionable under the FDCPA because the documents were accurate, even if improperly executed. The Court of Appeals also held that the general catch-all ‘unfair’ practices provision of the FDCPA did not apply… Read More
In Ambriz v. Patenaude and Felix, A.P.C., 2013 WL 2444648 (S.D.Cal. 2013), Judge Whelan allowed an FDCPA action to proceed against debt collection law firm who dismissed a state court collection claim without prejudice. Defendant argues that a state court collection complaint cannot form the basis for an FDCPA claim. Defendant cites Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct.… Read More
In Ferrini v. Cambece, 2013 WL 2421717 (E.D.Cal. 2013), Judge Drozd ordered FDCPA/Rosenthal Act claims to arbitration under a cardmember agreement. The undersigned finds that the debt collection practices at issue relate to the card member agreement, that the broad language of the arbitration provision found in that agreement provides that plaintiff's claims are subject to arbitration, and that there… Read More
In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case. Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More
In Felix v. Northstar Location Services, LLC, --- F.R.D. ----, 2013 WL 2319326 (W.D.N.Y. 2013), Judge McCarthy rejected a settlement class under the FDCPA and Rosenthal Act arising from allegedly inadequate and deceptive voicemail messages left on debtors’ answering machines. The facts alleged were as follows: By Text Order dated June 15, 2011[24], I granted the parties' motions to consolidate… Read More
In Gorman v. JP Morgan Chase Bank, 2013 WL 1882303 (S.D.Cal. 2013), Judge Anello addressed a Plaintiff’s FDCPA claims against his automobile finance company and the repossession company it hired. Judge Anello found that JP Morgan-Chase was not a debt collector because, as an auto finance company, it was the original creditor. Defendant JP Morgan argues that the FDCPA does… Read More
It was largely a run-of-the-mill letter case, regarding whether the Defendant complied with Camacho’s validation notice requirements (it didn’t). But, Judge Koh took time from her busy schedule in the Apple v. Samsung mega-trial to find that California’s elder-abuse statute allowed trebling of a statutory penalty under the Rosenthal Act. (Johnson v. CFS II, Inc., 2013 WL 1809081 (N.D.Cal. 2013)… Read More
In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act. In… Read More
