In Evans v. Williams & Fudge, Inc., 2012 WL 3025164 (S.D.Cal. 2012), Judge Miller found Rosenthal Act claims subject to arbitration, explaining: Here, the court concludes that the debt collection practices at issue directly arise or relate to the Promissory Note. As the broad language in the arbitration provision provides that any claim or dispute arising or related to the… Read More
In Midland Funding, LLC v. Pipkin, --- P.3d ----, 2012 WL 2849295 (Utah App.), 2012 UT App 185 (2012), the Court of Appeal catalogued the caselaw holding that an FDCPA violation is not a defense to the underlying debt itself or, conversely, that FDCPA compliance is not a pre-condition to collection on the obligation. Pipkin also argues that the Fair… Read More
In McMahon v. LVNV Funding, LLC, 2012 WL 2597933 (N.D.Ill. 2012), the defendant debt collector was sued in a class action alleging that the debt collector was required to disclose that stale debt was barred by the statute of limitations and the debt collector could not sue on it. Plaintiffs alleged that the FTC had taken the position in an unrelated… Read More
In Freeman v. ABC Legal Services, Inc., 2012 WL 2589965 (N.D.Cal. 2012), Judge Chen held in consolidated proceedings alleging multiple claims of ‘sewer’ or ‘gutter’ service of process by a debt collector that the Plaintiffs lacked Article III standing to bring a UCL claim based on the FDCPA. The defendant collected no money from the defendants, so restitution was not… Read More
In Grant-Fletcher v. Brachfeld Law Group, PC, 2012 WL 2523094 (D.Md. 2012), Judge Nickerson held that a debt collector telling a consumer, after the 30 day validation period expired, that the consumer could not dispute the debt constitute a false representation. The facts were as follows. This action arises from communications made in connection with Defendant's efforts to collect debts… Read More
In Ayvazian v. The Moore Law Group, et al, (Case No. 2:12-CV-01506-ODW) 2012 WL 2411181 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11) and Minasyan v. Creditors Financial Group, LLC, et al, (Case No. 2:12-CV-01864-ODW) 2012 WL 2328242 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11), Judge Otis Wright held that neither a lawyer nor… Read More
In Pace v. Portfolio Recovery Services, LLC, 2012 WL 2398024, (W.D.Mo. 2012), here, Judge Sachs held that a Plaintiff who gave ambiguous testimony on mailing of a Cease and Desist letter under FDCPA was not entitled to the presumption of the mailbox rule wherein delivery is presumed. Whether plaintiff can create a jury issue over adequately having given written notification to… Read More
In Riggs v. Prober & Raphael, A Law Corp. --- F.3d ----, 2012 WL 2054640 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a debt collector violates the FDCPA if his letter starting collection efforts states expressly that the debtor must dispute the debt in writing within 30 days or have the debt deemed valid. Camacho… Read More
In Zavodnick v. Gordon & Weisberg, P.C., 2012 WL 2036493 (E.D.Pa. 2012), Judge Diamond whacked an FDCPA Plaintiff’s counsel’s fee application, rejecting as irrelevant and unreliable the boilerplate ‘fee surveys’ often submitted to justify exorbitant rates. Judge Diamond explained: In support, Kimmel & Silverman has submitted evidence relevant to law practice in other regions. The firm offers affidavits from two… Read More
In Quigley v. Verizon Wireless, 2012 WL 1945784 (N.D.Cal. 2012), Judge Chen allowed an FDCPA plaintiff leave to amend to allege a violation of 15 U.S.C. § 1692c where the debtor claimed that he could allege that the debt collector knew where he was before the debt collector started to call third parties. Section 1692c covers communications in con-nection with… Read More
In Torres v. ProCollect, Inc., 2012 WL 1969280 (D.Colo. 2012), Judge Babcock found wanting a voicemail message left for a debtor under the FDCPA because it did not identify the debt collection agency. Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company. Moreover, “because… Read More
SCOTUS granted cert in the Marx v. General Revenue Corporation case that we reported on previously. SCOTUS' review will address whether a prevailing defendant in an FDCPA matter can recover its costs under FRCP 54(d) or must prove, in order to recover such costs, whether the Action was filed in bad faith by the Plaintiff, as required by 15 USC 1692k(a)(3) … Read More
In Valle v. National Recovery Service, here, Judge Merryday held that 82 calls during a 252 day span did not constitute harassment as a matter of law, granting summary judgment for the debt collector under the FDCPA. Attempting to show a triable issue of fact, Valle cites only the phone calls from National. Occurring during a 252-day span, the eighty-two… Read More
In Zemeckis v. Global Credit & Collection Corp. --- F.3d ----, 2012 WL 1650479 (7th Cir. 2012), the Court of Appeals for the Seventh Circuit addressed what constitutes puffery or material misrepresentations in a collection letter under the FDCPA. To summarize, the Court of Appeals held that (1) suggestions in dunning letter, for debtor to “take action now” and call “today,”… Read More
In McEndree v. Rash Curtis & Associates, 2012 WL 1640465 (E.D.Cal. 2012), Judge England found that liability cascaded down through the Rosenthal Act and FDCPA when a debt collector communicated about the debt with a girlfriend whom the debt collector mistakenly believed was the debtor's spouse. Judge England found liability for impermissibly violating the prohibition against discussing more than location information… Read More
In Smith v. Capital One Financial Corp. 2012 WL 1669347 (N.D.Cal. 2012), Judge Hamilton held that an FDCPA claim and common law invasion of privacy claim would not lie against a credit card company collecting its own obligations. However, a company that extends a consumer credit line (e.g., a credit card company) is in the business of extending credit, not the… Read More
In Rodriguez v. Discovery Bank, 2012 WL 1520073 (S.D.Cal. 2012), Judge Moskowitz explained what validation is required by a debt collector in response to a consumer dispute. Plaintiff misunderstands Defendants' duty with respect to verification of the debt. The Ninth Circuit has made it clear that “verification of a debt involves nothing more than the debt collector confirming in… Read More
We recently argued, in opposing an attorneys' fee motion, that a survey of attorneys fee rates across the country – and in California –was unreliable as supporting evidence of a reasonable attorneys' fee rate. We argued Plaintiffs’ counsel states that they “maintain an updated survey of free rates charged by other California consumer protection attorneys.” No they don’t. They just… Read More
In Tourgeman v. Collins Financial Services, Inc., 2012 WL 1327824 (S.D.Cal. 2012), Judge Bencivengo held that a Plaintiff lacked standing in a class action to pursue a UCL claim based on a violation of the FDCPA/Rosenthal Act. Upon consideration of the briefing before the Court, and argument of counsel, the Court finds that Plaintiff has not met his burden… Read More
In Johnson v. PMAB, LLC, 2012 WL 1379843 (W.D.N.C. 2012), Judge Conrad held that only consumers, and not third parties, have standing to pursue a cease-and-desist violation under the FDCPA. The Fourth Circuit addressed more general standing to sue under the FDCPA in Rawlinson v. Law Office of William M. Rudow, LLC, No. 10–2148, 2012 WL 19666 (4th Cir.… Read More
