In Guajardo v. GC Services, LP, 2012 WL 5419505 (5th Cir. 2012), the Court of Appeals for the Fifth Circuit reversed a $120,000 FDCPA jury verdict, and issued a remittur in the amount of $4,500. Plaintiff had testified that she was not claiming compensation for time off of work, out-of-pocket expenses, or mental anguish. The district court denied GC's motion. … Read More
In Dunning v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 5463294 (S.D.Fla. 2012), Judge Demitrouleas denied summary judgment in an FDCPA call-volume case, not because of the volume of the calls but because of a factual question regarding whether they were received and, if so, their content. The Court finds the parties' dispute about the accuracy of Plaintiff's… Read More
In Keshishian v. AFNI Inc., 2012 WL 5378819 (C.D.Cal. 2012), Judge Feess dismissed Plaintiff’s claims as improvidently pleaded. Plaintiff Marine A. Keshishian alleges that Defendants Afni, Inc., Enhanced Recovery Company, LLC, Equable Ascent Financial, LLC (“Equable”), and Union Adjustment Company, Inc. are engaged in unfair debt collection practices. (Docket No. 3 [Compl.].) Specifically, Plaintiff alleges violations of the Federal Fair… Read More
In Wiebe v. Zakheim & Lavrar, P.A., 2012 WL 5382181 (M.D.Fla. 2012), Judge Smith found that a debt collector had adequately pleaded facts supporting a ‘bona fide error’ affirmative defense. The Defendant's First Affirmative Defense of “bona fide error,” is based upon 15 U.S.C. § 1692k(c) which provides that under the FDCPA, a debt collector is shielded from liability if… Read More
In Gnoinska v. Messerli & Kramer, P.A., 2012 WL 5382180 (D.Minn. 2012), Judge Magnusson held that rudeness did not equate to harassment under the FDCPA. The standard on a Motion to Dismiss is not merely whether the allegations could amount to a claim, but whether the allegations plausibly state a claim. Gnoinska bases her claim on: (1) Doe's unwillingness to… Read More
In a trio of cases, Benedict v. CACH, LLC, 2012 WL 5382255 (S.D. Cal. 2012), Odish v. CACH, LLC, 2012 WL 5382260 (S.D. Cal. 2012), and Jackson v. CACH, LLC, 2012 WL 5382257 (S.D.Cal. 2012), Judge Battaglia held that a frequently-used Plaintiff’s trick stating that “Plaintiff takes no position on the validity of the debt” in support of Plaintiff’s FDCPA… Read More
In McQueen v. American Exp. Centurion Bank, 2012 WL 5301075 (N.D.Cal. 2012), Judge James dismissed a Plaintiff's FDCPA claim on a Rule 12(b)(6) motion because the defendant was a creditor, exempt from the FDCPA. The FDCPA defines “creditor” as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4). The… Read More
In Thompson v. National Credit Adjusters, LLC, 2012 WL 5372577 (D.Minn. 2012), Judge Nelson found a skip tracer’s letter to consumers to obtain telephone information for the skip tracer’s debt collector clients rendered the skip tracer subject to the FDCPA, too. The facts were as follows. Plaintiff Lamont A. Thompson incurred a consumer debt with Fast Cash Personal Loan. Plaintiff… Read More
In Webb v. Premiere Credit of North America, LLC, 2012 WL 5199754 (D.Kan. 2012), Judge Robinson granted summary judgment to a debt collector who called a debtor 150 times in 7 months, but was never able to reach the customer during that time. The facts were as follows: The following facts are either uncontroverted, stipulated to, or viewed in the… Read More
On January 2, 2013 the Consumer Financial Protection Bureau (CFPB) starts its supervision of large debt collection firms that account for 63 percent of the market. The CFPB announced Final Rule on Wednesday. The CFPB will regulate 175 debt collection firms that each bring in more than $10 million in annual receipts. See the live-blog entries from the CFPB's roundtable as to what… Read More
In Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, --- F.3d ----, 2012 WL 5188812 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit held that condominium association fees qualify as a “debt” subject to the FDCPA. Because the statute's definition of a “debt” focuses on the transaction creating the obligation to pay, the obligation to pay is… Read More
[liveblog] Here at the CFPB Hearing in Seattle, Washington. [liveblog] The CFPB is holding a Field Hearing on debt collection and the CFPB's new enforcement positions. (http://www.consumerfinance.gov/blog/save-the-date-seattle-washington/) I am attending the Field Hearing, and am Live-Blogging from the event. Read More
In Gutierrez v. State Farm Mut. Ins. Co., 2012 WL 4902888 (N.D.Cal. 2012), Judge Davila found that an automobile finance company was not a ‘debt collector” within the meaning of the FDCPA. The facts were as follows: Plaintiffs are husband and wife. See FAC, Docket Item No. 38, at ¶ 2. At some point prior to July, 31,… Read More
In Melendez v. CACH, LLC, 2012 WL 4902687 (N.D.Cal. 2012), Judge Wilken found the “continuing violation” theory for FDCPA statute of limitations purposes inapplicable outside on-going telephone call cases. The Attorney Defendants, Laskin Law Offices, CACH and SquareTwo contend that the FDCPA claim is barred by the one-year statute of limitations pursuant to 15 U.S.C. § 1692k(d). Under Ninth Circuit… Read More
In Swearingen v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 4354748 (N.D.Ill. 2012), Judge Chang found that a ‘loud buzzing sound’ in the debt collector’s telephone calls was meant to harass the debtor. In addition, Gordon testified that on numerous occasions he requested that Portfolio provide him with a letter or at least an address for him… Read More
In Ehrich v. Credit Protection Ass'n, L.P., --- F.Supp.2d ----, 2012 WL 4119737 (E.D.N.Y. 2012), Judge Kohrman found that the facts of the FDCPA case and penalty-only plea did not confer Article III standing. Judge Kohrman did not address Supreme Court’s dismissal of certiorari (as to RESPA) in Edwards v. First American Corp. 610 F.3d 514 (9th Cir. 2010), nor… Read More
In Dicesari v. Asset Acceptance LLC, 2012 WL 4108944 (E.D.Pa. 2012), Judge Joyner found that false statements in a lawsuit complaint were not actionable under 15 USC 1692e(5) that prohibits a threat to take any action that can not legally be taken or that is not intended to be taken. The lawsuit is not a “threat”, it is an action,… Read More
In Ansari v. Electronic Document Processing, Inc., 2012 WL 3945482 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to FDCPA affirmative defenses. This Court previously considered both of Defendants arguments in Perez. With respect to Defendants' first argument, as set forth in Perez, notwithstanding the textual differences between Rule 8(a)(2) and Rule 8(b)(1)(a), “it is well established that ‘[a]ffirmative defenses are governed… Read More
In Jobe v. Alliance Collection Service, 2012 WL 3985182 (N.D.Miss. 2012), Judge Aycock held that a debt collector’s counter-claim to an FDCPA claim to collect on the debt itself was permissive, rather than compulsory, and declined to exercise jurisdiction over it. Although the Fifth Circuit has not directly addressed the question of whether an action to collect on an underlying… Read More
In Santos v. LVNV funding, LLC, 2012 WL 3985527 (N.D.Cal. 2012), Judge Davila found that individual lawyers are exempt from the Rosenthal Act, but law firms are not. The parties point to a split in authority as to whether a law firm can be considered a “debt collector.” Plaintiff asserts that twelve of the fifteen district courts that have considered… Read More
