In Hinderliter v. Diverisified Consultants, Inc., 2012 WL 3888148 (N.D.N.Y. 2012), Judge Mordue granted summary judgment for a debt collector on a telephonic harassment claim because the efforts to call were efforts to reach the Plaintiff, not to harass. Plaintiffs also complain that during the August 23, 2010 call, Losco stated that failure to resolve the debt would affect Dean… Read More
In Easterling v. Collecto, Inc., --- F.3d ----, 2012 WL 3734389 (2d Cir. 2012), the Court of Appeals for the Second Circuit held that a student loan debt collector’s representation that the debtor’s loans were not eligible for discharge in bankruptcy was false, triggering FDCPA liability. Instead, the operative inquiry in this case is whether the hypothetical least sophisticated consumer… Read More
In Beard v. Sentry Credit, Inc., 2012 WL 3778880 (E.D.Cal. 2012), Judge Mueller partially granted summary judgment on Plaintiff’s FDCPA harassment claim. Judge Mueller found that the call volume and pattern did not support a claim of harassment. Plaintiff later estimated that Sentry called her at least seven times per day, every day over the course of months (Id. at… Read More
In Tourgeman v. Collins Financial Services, Inc., 2012 WL 3731807 (S.D.Cal. 2012), Judge Bencivengo rejected a Plaintiff’s FDCPA claim grounded on a Creditor’s collection firm’s misidentification of the creditor and account number in collection correspondence and, ultimately, in a collection lawsuit. Judge Bencivengo addressed the liability of the creditor/debt collector for this mistake. Judge Bencivengo found the misidentification not material… Read More
In Snyder v. Daniel N. Gordon, P.C., 2012 WL 3643673 (W.D.Wash. 2012), Judge Jones found that a single non-itemized statement of the debt in the debt collector's initial communication was deceptive because it did not itemize the obligation. As far as the court is aware, the Ninth Circuit has not directly addressed the issue of whether a debt collector must provide the… Read More
In Angel v. American Recovery Services Inc., 2012 WL 3594371 (W.D.Wash.), Judge Coughenour followed the 9th Circuit’s rule in Guerrero that the FDCPA does not apply to communications with debtor’s counsel. ARSI contends that any relief for Plaintiff on the facts alleged is foreclosed by the Ninth Circuit's decision in Guerrero v. RJM Acquisitions, 499 F.3d 926 (9th Cir.2007). In… Read More
In Jacques v. Solomon & Solomon P.C., --- F.Supp.2d ----, 2012 WL 3581172 (D.Del. 2012), Judge Andrews addressed a debt collector’s obligation to validate a debt both before and after a debtor’s dispute of the dispute. As to the first three allegations, each of which relate to the validity of the debt and whether Northland had the authority to attempt… Read More
In Zinni v. ER Solutions, Inc., --- F.3d ----, 2012 WL 3641911 (11th Cir. 2012), the Court of Appeals for the Eleventh Circuit ducked the issue of whether a Rule 68 offer in an FDCPA case divested the federal court of Article III case or controversy jurisdiction by finding that the defendant’s offer did not completely dispose of the Plaintiff’s… Read More
In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject. On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per… Read More
In Meyer v. Santander Consumer USA, 2012 WL 3528117 (E.D.Cal. 2012), Judge Hollows held that an automobile finance company was a ‘creditor’ and not a ‘debt collector’ under the FDCPA. Judge Hollows found no difference that the finance company had purchased the portfolio of the Plaintiff’s original creditor. Here, Santander has produced substantial evidence that it was plaintiff's creditor as… Read More
In Long v. International Recovery Systems, Inc., 2012 WL 3597748 (W.D.Mo. 2012), Judge Maughmer held that an out-of-state debt collector placing debt collection calls to an in-state resident subjected itself of jurisdiction in that state. Carl Leon Long sued International Recovery Systems, Inc. (“IRS, Inc.”), alleging that IRS, Inc. violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et… Read More
In Roberts v. NRA Group, LLC, 2012 WL 3334488 (M.D.Pa. 2012), Judge Caputo distinguished between delinquent debts and debts in “default” for purposes of triggering the FDCPA. Judge Caputo granted summary judgment to a debt collector on the basis that a delinquent hospital debt assigned to it was not “in default” at the time of the assignment. Here, Defendant's motion… Read More
The CFPB's and FTC's amicus brief urges the Supreme Court to overturn the Marx decision of the U.S. Court of Appeals for the Tenth Circuit, where Ms. Marx sued General Revenue Corporation under the FDCPA. Marx lost. The 10th Circuit ruled that Marx was responsible for paying more than $4,500 to cover the debt collector’s litigation costs, even though she… Read More
In Ear v. Empire Collection Authorities, Inc., 2012 WL 3249514 (N.D.Cal. 2012), Judge Conti addressed the post-Iqbal/Twombly standard required for pleading affirmative defenses under the Rosenthal Act/FDCPA. It is true that there is a split within this circuit, but judges in this district have, uniformly so far as the undersigned can tell, adopted the plausibility standard. E.g., Barnes v. AT… Read More
In Fisk v. ARS Nat. Services, Inc., 2012 WL 3236569 (N.D.N.Y. 2012), Judge McAvoy rejected the ‘continuing violation’ theory for FDCPA statute of limitations purposes, refusing to strike the affirmative defense from defendant’s answer. Plaintiff moves to strike Defendants' statute of limitations defense on the ground that the applicable statute of limitations is one year, 15 U.S.C. § 1692k(d), the… Read More
In Roots v. American Marine Liquidators, Inc., 2012 WL 3136462 (D.S.C. 2012), Judge Anderson entered a default judgment against a marine financer for debt collection tactics employed in the collection of a debt secured by a boat. American Marine Liquidators, Inc. was found to be in default in this action on May 31, 2012 [Doc. 9]; American Marine Liquidators, Inc.,… Read More
In Lox v. CDA, Ltd., --- F.3d ----, 2012 WL 3124781 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit found that extrinsic evidence was not required to demonstrate material falsity of a collection letter that stated that a consumer “may” have to pay attorneys’ fees, when there was neither a statutory nor contractual basis for recovery of… Read More
In Smith v. Capital One Financial Corp., 2012 WL 3138024 (N.D.Cal. 2012), Judge Hamilton found that an in pro per Plaintiff properly pleaded that a debt collector called her too early in the morning: Midland first argues that the FAC does not state a claim under the FDCPA. With regard to the allegation regarding the 7:00 a.m. EST call, Midland… Read More
The Court of Appeals issued its ruling yesterday. In Evon v. Law Offices of Mickel, here, the Court of Appeals for the Ninth Circuit found deceptive the practice of sending collection letters to the debtors at their employer's address. Next, even if Mickell assumed that some debtors receive mail at their place of employment, it is not reasonable for Mickell… Read More
In McEndree v. Rash Curtis & Associates, 2012 WL 3028010 (E.D.Cal. 2012), Judge England held that violation of a cease-and-desist exists even if the debtor never answers the telephone call that forms the basis for the cease and desist. Judge England explained: Rash Curtis advances two arguments in support of its futility argument. First, it argues that because Plaintiff did… Read More
