FDCPA (Fed & State)

  In Koller v. West Bay Acquisitions, LLC, 2012 WL 1189481 (N.D.Cal. 2012), Judge Breyer held that vague references to ‘further action’ in the collection context could be interpreted by the least sophisticated consumer as threats to make false credit reporting.Yes, that’s what he held. Section 1692e(5) prohibits “threat[s] to take any action that cannot legally be taken or that… Read More

  In Williams v. Emergency Groups' Office, 2012 WL 1032700 (2012), the Court of Appeal affirmed, in an unpublished decision, the trial court’s denial of class certification under the Rosenthal Act for alleged infirmities in the collection of medical bills.The Court of Appeal found, in part, that the Plaintiffs’ class definition was too broad because it necessarily would have included… Read More

In Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to a debt collector’s affirmative defenses, and addressed what affirmative defenses are available to an FDCPA/Rosenthal Act claim. Next, the parties dispute the scope of defenses available to Defendants under the FDCPA. Plaintiff argues that all of Defendants' affirmative defenses, except for… Read More

In Hernandez v. Guglielmo, 2012 WL 993676 (D.Nev. 2012), Judge George followed Camacho: Neither the Ninth Circuit, nor apparently any other circuit, has directly addressed the issue of whether a debt collector violates § 1692g if the debt collector does not specifically inform the consumer that the consumer's written notification or request pursuant to subsection (a)(4) or (a)(5) initiates the… Read More

  In Scott v. Kelkris Associates, Inc., 2012 WL 996578 (E.D.Cal. 2012), Judge Shubb found that improper service of a state-court debt collection suit did not give rise to a seldom-pleaded Rosenthal Act violation. The Rosenthal Act provides that “[n]o debt collector shall collect or attempt to collect a consumer debt by means of judicial proceedings when the debt collector… Read More

In Bourff v. Rubin Lublin, LLC, 2012 WL 851626 (11th Cir. 2012), the Court of Appeals for the Eleventh Circuit held that a collection lawyer collecting on defaulted mortgage debt better dig deep to understand all the permutations and securitizations of the mortgage industry in order to properly identify the “creditor” under the FDCPA. Merely identifying the party who had… Read More

In Salazar v. MFP, Inc., --- F.Supp.2d ----, 2012 WL 762494 (M.D.Fla. 2012), Judge Hernandez-Covington held that a debt collector violated the FDCPA by honoring a cease-and-desist letter on one account but continuing to pursue another account. Plaintiff asserts that Defendant violated this provision by sending her a collection letter on August 31, 2010, after she had sent her cease… Read More

In Lopez v. Professional Collection Consultants, 2012 WL 777497 (C.D.Cal. 2012), Judge Gutierrez found that the Plaintiff stated a claim for harassment under the Rosenthal Act and FDCPA. Plaintiff alleges that Defendant began placing collection calls to Plaintiff in January 2010 for a debt that Defendant claimed was owed to AT & T. SAC ¶ 11. FN1 Defendant informed Plaintiff… Read More

In Cruz v. International Collection Corp., --- F.3d ----, 2012 WL 742337 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that a debt collector violated the FDCPA by seeking costs and interest that were not allowed under state law.  The Court of Appeals explained: Under Nevada law, a debt collector may not collect any interest or fees unless… Read More

In Dunn v. Advanced Credit Recovery Inc., 2012 WL 676350 (S.D.N.Y. 2012), Judge Kott confirmed that the FDCPA penalty is “per lawsuit”, not “per violation”. Judge Kott explained, “Dunn seeks a total of $5,000, asserting entitlement to the maximum statutory damage award of $1,000 for five separate violations. However, the case law limits recovery to $1,000 per action, not per… Read More

In Nevada v. Bank of America Corp., --- F.3d ----, 2012 WL 688552 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a federal statute (the FDCPA) embedded in Nevada’s state law UDAP statutory claim did not raise a ‘substantial federal question’ sufficient to confer federal jurisdiction.    Here, the Complaint raises exclusively state law claims.… Read More

In McNichols v. Moore Law Group, 2012 WL 667760 (S.D.Cal. 2012), Judge Hayes held (without analysis) that a Plaintiff stated vicarious FDCPA liability against a Bank for the collection actions of its counsel.    Plaintiff alleges in the Complaint that Defendant Dis-cover Bank “uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which… Read More

In Grant–Hall v. Cavalry Portfolio Services, LLC, 2012 WL 619651 (N.D.Ill. 2012), Judge Feinerman held that a debt collection agency was vicariously liable for the conduct of their attorneys, and that the filing of a defective lawsuit can violate the FDCPA where the filing falsely implies that the debt collector has legal recourse against the debt. The filing of a legally defective… Read More

In Frees v. Pioneer Credit Recovery, Inc., 2012 WL 600785 (S.D.Ohio 2012), Judge Rice found no telephonic harassment for 77 efforts in 8 months.    Frees' Amended Verified Complaint alleges that Pioneer “violated 15 U.S.C. 1692d by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass,” calling… Read More

In Adkins v. Weltman, Weinberg & Reis Co., L.P.A., 2012 WL 604249 (S.D.Ohio 2012), the District Court decided not to follow the FTC interpretation of the FDCPA, and found that garnishment of wages was an ‘action’ subject to the FDCPA venue provisions.      Section 1692i of title 15 of the United States Code provides in pertinent part: (a) Venue--… Read More

In Siwulec v. J.M. Adjustment Services, LLC, 2012 WL 666649 (3d Cir. 2012), the Court of Appeals for the Third Circuit found that a Bank’s “door knock” service was subject to the FDCPA, and was not a mere delivery service of letters for the Bank.  The allegations were as follows:   On about May 10, 2010, Siwulec, a resident of… Read More

In Rose v. Asset Acceptance, 2012 WL 603263 (2012), the California First District Court of Appeal affirmed in an unpublished decision a denial of class certification of a claim filed under the Rosenthal Act.  The facts arose from a debt collector’s suit against a debtor arising from her telephone bill purportedly beyond the statute of limitations.  The trial court rejected… Read More

In this case filed originally by Lara Shapiro and taken over by Sergei Lemberg, Judge Mendez denied class cert. in this matter, and the Court of Appeals just heard oral argument on the appeal of the denial of class cert.  The issue addresses not only of whether the mailing of dunning letters as alleged violated the FDCPA, but also whether the… Read More

In Braham v. Automated Accounts, Inc., 2012 WL 554036 (E.D.Wash. 2012), Judge Shea found that a discussion of wage garnishment did not involve threat of an action that cannot legally be taken or that is not intended to be taken in violation of the FDCPA.  Judge Shea included a good discussion of ‘discussion of garnishment’ or ‘discussion of legal process’… Read More

In Gutierrez v. State Farm Mut. Ins. Co.,  2012 WL 398828 (N.D.Cal. 2012), Judge Davila addressed the rights of a non-contracting spouse to sue under an automobile RISC and under the Rosenthal Act.      Plaintiffs are husband and wife.  Husband purchased a limited edition 2007 Pontiac Solstice (the “vehicle”), financed by defendant finance company.  Husband contracted with Defendant State… Read More