FDCPA (Fed & State)

In Neu v. Genpact Services, LLC, 2013 WL 1773822 (S.D.Cal. 2013) granted in part and denied in part a debt collector’s summary judgment motion brought against a debtor’s FDCPA harassment claim.  The facts were as follows. Genpact is a debt collector as defined by the Fair Debt Collections Practices Act (“FDCPA”) and California Rosenthal Fair Debt Collection Practices Act (“Rosenthal… Read More

In Moriarity v. Henriques, 2013 WL 1704937 (E.D.Cal. 2013), Judge Thurston explained the Rooker-Feldman doctrine as applicable in the FDCPA context, finding that it prohibited her from using the FDPCA to review ‘representations’ that the Debtor was properly served in the state court collection action in order to obtain a default judgment. FIA Card Services, N.A. retained the law firm… Read More

In Bliese v. Credit Bureau of Ukiah, Inc., 2013 WL 1694952 (N.D.Cal. 2013), Judge Illston granted summary judgment to a debt collector against a claim that the debt collector falsely threatened to file suit against the debtor. Plaintiff's first claim is for “threatening to file a lawsuit against Plaintiff even though Defendant did not intend to do so,” in violation… Read More

In Fitzgerald v. Law Office of Curtis O. Barnes, 2013 WL 1627740 (E.D.Cal. 2013), Judge Austin rejected application of the Laffey Matrix or Consumer Law Attorney Fee Survey Report as a basis to compute a fee rate under the FDCPA. In support of the requested hourly rates for counsel, Plaintiff adduces the United States Consumer Law Attorney Fee Survey Report… Read More

In Pasquale v. Law Offices of Nelson & Kennard, 2013 WL 1618020 (N.D.Cal. 2013), Judge Spero held that a debt collection law firm violated the FDCPA by failing to identify in subsequent voicemail messages to a debtor that it was a debt collector under 15 USC 1692e(11), but that its failure to do so was entitled to protection under the… Read More

In Devlin v. Law Offices of Howard Lee Schiff, P.C., 2013 WL 1459195 (D.Mass. 2013), Judge Dein ordered production of FDCPA manuals. The defendant shall produce any manuals concerning debt collection that it uses for general training purposes, as well any specific handouts or materials that it uses for purposes of compliance with the Fair Debt Collection Practices Act (“FDCPA”)… Read More

In O'Bryne v. Portfolio Recovery Associates LLC, 2013 WL 1223590 (S.D.Cal. 2013), Judge Gonzales found that a debt collector’s lawsuit alleging claims for account stated and for common counts did not misstate the debt in violation of the Rosenthal Act and FDCPA.   Plaintiff moved for summary judgment as to its first cause of action for violation of the FDCPA on… Read More

In Coppock v. Citigroup, Inc., 2013 WL 1192632 (W.D.Wash. 2013), Judge Coughenour granted a Petition to Compel Arbitration in a TCPA/FDCPA class action. The arbitration agreement clearly covers the TCPA and FDCPA claims. Citi made the calls to collect a debt it thought Coppock owed on her credit card account. Her claims based on those calls are thus “[c]laims relating… Read More

In Atchison v. Hiway Federal Credit Union, 2013 WL 1175020 (D.Minn. 2013), Judge Frank found that a creditor’s charging-off of an account and issuing a 1099-C did not by itself discharge the debt, but further discovery should be allowed before summary judgment could be granted as to whether the creditor intended for the issuance to discharge the debt. In addition,… Read More

In Davis v. Hollins Law, 2013 WL 1091221 (E.D.Cal. 2013), Judge Karlton (again) found that that the “attorney” exemption from the definition of “debt collector” under the Rosenthal Act does not extend to “law firms.”  Judge Karlton also found Defendants’ anti-SLAPP motion wanting because the phone calls left were not meaningfully in anticipation of litigation. Defendant argues that it left… Read More

The CFPB's Annual Report on the FDCPA is here and the compliance bulletin titled “Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act,” which provides guidance regarding their concerns with fair lending and dealer participation under the disparate impact theory, is here. Read More

Judge Karlton's precedent-setting and liability imposing decisions under the FDCPA are numerous.  (See., e.g, Newman v. Checkrite California, Inc., 912 F.Supp. 1354, E.D.Cal. 1995)(debt collector vicariously liable for debt collection activities of attorney; no FDCPA defense that collector was following the orders of the superiors; litigation privilege does not apply to FDCPA); Newman v. Checkrite California, Inc., 1994 WL 896637… Read More

In Crockett v. Rash Curtis & Associates, --- F.Supp.2d ----, 2013 WL 1010492 (N.D.Cal. 2013), Judge Alsup found that continuing to call after being put on notice from the answering machine message that it was the wrong person could constitute intent to harass. Similarly here, it is reasonable to infer that Rash Curtis very likely received notice from the contents… Read More

In Kayan v. Asset Acceptance, LLC, 2013 WL 1010554 (C.D.Cal. 2013), Judge Bernal found no failure to validate under the FDCPA when the Plaintiff failed to dispute the claim within the statutory 30-days. The uncontroverted evidence is that Palisades sent Plaintiff an initial demand letter on April 8, 2010. (Braun Decl., ¶ 5). Palisades did not receive any response to… Read More

In Breidenbach v. Experian, 2013 WL 1010565 (S.D.Cal. 2013), Judge Curiel found that an otherwise exempt creditor cannot be brought under the FDCPA by a theory of vicarious liability. AES argues Plaintiff's FDCPA claim against AES fails because AES is not a “debt collector” under the FDCPA and because AES cannot be held vicariously liable for the acts of WWR,… Read More

In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment. Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as… Read More

In Vartanian v. Portfolio Recovery Associates, LLC, 2013 WL 877863 (C.D.Cal. 2013), Judge Otis Wright III addressed a litany of FCRA and FDCPA claims brought by the Kaas Law Group.  Judge Wright held that a FCRA Plaintiff need not plead that its dispute to the CRA was not frivilous; i.e. non-frivilousness is not an element of a FCRA claim. Contrary… Read More

The West Virginia Supreme Court of Appeals in Vanderbilt Mortg. and Finance, Inc. v. Cole, --- S.E.2d ----, 2013 WL 870442 (W.Va. 2013), recently synced the West Virginia state-law version of the FDCPA with the federal FDCPA in finding that the state-law FDCPA did not require proof of actual damages in order to obtain a statutory penalty.  The Supreme Court… Read More

In Wells v. Deca Financial Services, LLC, 2013 WL 772870 (S.D.Ind. 2013), Judge Magnus-Stinson found that 15 USC § 1692e(8) imposes no duty upon debt collectors to advise credit reporting agencies that a debt is disputed when it is disputed after it is reported. Deca argues that “when a debt collector has made a report to a credit agency and… Read More

In Heathman v. Portfolio Recovery Associates, LLC, 2013 WL 755674 (S.D.Cal. 2013), Judge Gonzalez granted summary judgment on an FDCPA claim filed against a debt collector who had sued the wrong person in a state-court debt collection lawsuit. Judge Gonzalez rejected the contention that the creditor could not be held liable, vicariously or otherwise.  Judge Gonzalez held that clients could… Read More