FDCPA (Fed & State)

In Katzakian v. Collectibles Management Resources, 2013 WL 57712 (E.D.Cal. 2013), Judge O'Neill found that an FDCPA Plaintiff failed to state a claim for harassment under 1692d for continuing to collect after a dispute when the debt collector complied with post-dispute debt validation under 1692g. CMR summarizes that section 1692g(b) authorizes continued debt collection unless a consumer disputes in writing during the… Read More

In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More

In Robles v. Ally Bank, 2013 WL 28773 (S.D.Cal. 2013), Judge Battaglia found, in an FDCPA harassment case, that a cross-complaint for the debt was permissive and that there was supplemental jurisdiction to hear it.  Judge Battaglia, however, declined to exercise that jurisdiction. Although the Ninth Circuit has not specifically addressed “whether a counterclaim for the underlying debt in an FDCPA… Read More

In LaRocque ex rel. Spang v. TRS Recovery Services, Inc. 2013 WL 30055 (D.Me. 2013), Judge Hornby declined to expand a state-wide class action into a federal one to protect the FDCPA defendant against multiple $500,000 penalties under the Act. The defendants' central premise is that the Maine-limited scope of Class One “circumvent[s] the statutory cap on damages set forth in the… Read More

In Pfeifer v. Countrywide Home Loans et al., --- Cal.Rptr.3d ----, 2012 WL 6216039 (2012), the Court of Appeal for the First District found a trustee’s action in a non-judicial foreclosure to be exempt from the FDCPA, rejected arguments apparently advocated by the CFPB in other cases. Allen Pfeifer (Allen) and Florence A. Pfeifer (Florence), a son and his mother… Read More

In Hockenhull v. Law Office Howard Lee Schiff, P.C.  2012 WL 6525504 (D.R.I. 2012), Judge Smith rejected a debt collector's contention that he could ignore a Notice of Representation simply because the attorney is issued the NoR was not admitted to practice in Rhode Island.  Judge Smith explained: In response to Count I, that Defendants violated 15 U.S.C. § 1692c(a)(2) by… Read More

In Harris v. Liberty Community Management, Inc. --- F.3d ----, 2012 WL 6604518 (11th Cir 2012), the Court of Appeals for the Eleventh Circuit found that a homeowners' association's management company was exempt from the FDCPA, so long as its collection of association dues was not central to its fiduciary obligations to the HOA. The Fair Debt Collection Practices Act (… Read More

In Cerrato v. Solomon & Solomon --- F.Supp.2d ----, 2012 WL 6621339 (D.Conn. 2012), Judge Hall found that a debt collector violated a consumer's cease-and-desist by making 8 attempts to call the customer after the cease-and-desist, even though the customer never answered any of those calls.  The Court analogized to Foti's holding that voicemail messages were 'communications' under the FDCPA, and found,… Read More

In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws.  Judge Voorhees concluded that there was no pre-emption.  The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More

In  Mkhitaryan v. U.S. Bancorp, 2012 WL 6204840 (D.Nev. 2012), Judge Mahan refused to grant a Plaintiff’s summary judgment motion based on the claim that a repossession agent violated the FDCPA and ‘breached the peace’ during the course of a repossession.  As to the FDCPA, Judge Mahan found it inapplicable.   The purpose of the FDCPA includes, among other things,… Read More

In Vinson v. Credit Control Services, Inc.--- F.Supp.2d ----, 2012 WL 6137916 (D.Mass. 2012), Judge Tauro held that a debt collector did not violate the FDCPA’s time/place/manner restrictions by calling within the proper time zone even though the customer’s municipality applied a different time zone. Vinson claims that Credit Control Services violated the statute by calling her after 9:00 p.m.,… Read More

In U.S. v. Warner, 2012 WL 6087193 (N.D.Cal. 2012), Judge Beeler ordered the Government to produce FDCPA compliance information with regard to its efforts to collect on student loans from an in-pro-per attorney. So, are his discovery requests relevant to them? Yes. As noted above, Mr. Warner essentially seeks all communications between him and the Department (and its agents) and… Read More

In Cappos v. Suppa, Trucchi & Henin, LLP, 2012 WL 6057995 (S.D.Cal. 2012), Judge Lorenz held that where the Plaintiff’s FDCPA suit arises from purported improper sums sought in a state court collection action, the filing of the state court action triggers the running of the statute of limitations for FDCPA purposes. An FDCPA claim must be brought “within one… Read More

In Ayala v. Creditors Specialty Service, Inc., 2012 WL 5198482 (E.D.Cal. 2012), Judge O’Neill found that, if true, a debt collector acted properly in its communications with the debtor’s employer. With regard to the merits of plaintiff's claims, she argues that she is entitled to summary judgment on her § 1692b(2) and Cal. Civ.Code § 1788.17 claims be-cause CSS disclosed… Read More

In Brown v. International Asset Group, LLC, 2012 WL 6002512 (S.D.Ohio 2012), Judge Black found that a debt collector that falsely held itself out on the internet as a Legal-aid service for low income debtors violated the FDCPA. Plaintiff, a resident of Piqua, Ohio, conducted a web search for free legal aid services in March 2012, and logged on to… Read More

In Udo v. Kelkris Associates, Inc., 2012 WL 5985663 (S.D.Cal. 2012), Judge Gonzalez found that collection of towing charges did not meet the ‘transaction’ requirement of the FDCPA nor the “consumer credit” requirement of the Rosenthal Act. “As a threshold matter, a suit brought under the FDCPA must involve a “debt” within the meaning of the statute.” Fleming v. Picard,… Read More

In Tonnesen v. Legal Recovery Law Offices, Inc., 2012 WL 5932789 (E.D.Cal. 2012), Judge Mendez declined to dismiss a Rosenthal Act claim against a law firm, finding that the law firm – as opposed to individual lawyers -- was not exempt. Defendant alternately argues that the Rosenthal Act claims should be dismissed because it is a law firm and the… Read More

In Young v. LVNV Funding, LLC, 2012 WL 5508407 (E.D.Mo. 2012), Judge Fleissig held that a consumer need not plead that a CRA informed the furnisher of the dispute in order to state a FCRA claim. Courts differ on whether a plaintiff must plead with certainty that notice was given by the CRA to the furnisher and the Eighth Circuit… Read More

In Hylton v. Anytime Towing, 2012 WL 5498887 (S.D.Cal. 2012), Judge Curiel found that city towing fees were not ‘debts’ under the FDCPA or Rosenthal Act. Courts have held that a motor vehicle impoundment and towing fees arising out of action authorized by state law enforcement agency do not constitute a “debt” within the meaning of Fair Debt Collection Practices… Read More

In In re Culpepper, --- B.R. ----, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper's residence property.  You know how it might turn out when Judge Dunn began his opinion… Read More