FDCPA (Fed & State)

In Gamby v. Equifax Information Services LLC, 2012 WL 447491 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit found that a debt collector's loss of a lawsuit seeking to collect on the debt ipso facto created FDCPA liability based on the debt collector's previous statements that the the debtor's owed the debt.  Taken together, the plain language of… Read More

In Hagy v. Demers & Adams, LLC,  2012 WL 359577 (S.D.Ohio 2012), Judge Kemp enforced an arbitration clause and referred FDCPA matters arising out of collection on a promissory note to arbitration.      The arbitration agreement here covers “[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract....” Each… Read More

In Grant v. Unifund CCR Partners, --- F.Supp.2d ----, 2012 WL 379911 (C.D.Cal. 2012), Judge Snyder granted summary judgment based on the Rooker-Feldman doctrine.  A copy of the decision is here.   The Rooker–Feldman doctrine applies to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court… Read More

In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting.  In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More

In Seeley v. Nevada Ass'n Services, Inc., 2012 WL 295250 (D.Nev. 2012), Judge Navarro found that a 30-day validation letter contained ‘overshadowing’ language in potential violation of the FDPCA.  The offending language, contrasted against the 30-day validation period, was as follows:   If you want to resolve this matter before a Notice of Delinquent Assessment Lien is recorded and sent… Read More

In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez.  As to the claim under the ASFA, Judge Sabraw held:   Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information… Read More

In Santos v. LVNV Funding, LLC, 2012 WL 216398 (N.D.Cal. 2012), Judge Davila found that an FDCPA claim arising out of a debt collector’s failure to honor a settlement agreement in an underlying debt collection action was not protected by the Rooker-Feldman doctrine or the litigation privilege.  The facts were as follows.  Santos became delinquent on a consumer credit card… Read More

In Rodriguez v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 211511 (W.D.Wash. 2012), Judge Martinez held that a debt collector’s claim for ‘reverse attorneys’ fees’ arising from the debtor’s bad-faith filing of an FDCPA claim must be brought as an attorney fee motion, not as a separate counter-claim.    A few courts have allowed § 1692(k)(a)(3) counterclaims. See… Read More

This may be the only case I’ve seen on this subject.  Judge Davis addressed the timing of depositing post-dated checks under the FDCPA in Winter v. Messerli & Kramer, P.A. 2012 WL 186569 (D.Minn. 2012).  The facts were as follows.  MK asserts that on June 30, 2010, Plaintiff contacted MK and spoke with defendant Ashley and requested that he be… Read More

In Howard v. RJF Financial, LLC, 2012 WL 170904 (D.Ariz. 2012), Judge Snow held that the Rooker-Feldman ­doctrine prohibits a federal court from re-considering under the FDCPA a debt collector’s filing of a state court collection action on a debt that otherwise would have been barred by the applicable statute of limitations on such debt.   There is no issue… Read More

In Tarrant v. Northland Group, Inc., 2012 WL 140431 (M.D.Tenn. 2012), Judge Trauger found no telephonic harassment under the FDCPA where the debt collector tried to reach the consumer 39 times, but reached her only twice.      In determining whether Northland's “calls amount to harassment, annoyance, or abuse, the volume of calls must be examined along with the pattern… Read More

In Scott v. Kelkris Associates, Inc., 2012 WL 161415 (E.D.Cal. 2012), Judge Shubb granted summary judgment to a debt collector on FDCPA and Rosenthal Act claims where the debtor claimed that the debt collector’s substitution service of process relating to a state-court collection action was invalid.  The Court found no unconscionable practices under the FDCPA, and imposed an intent element… Read More

In Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221 (N.D.Cal. 2012), Judge Conti imposed the higher Iqbal/Twombly pleading standards to a debt collector’s pleading affirmative defenses.    The parties dispute which standard should apply to the instant motion. Plaintiffs urge this Court to apply the heightened “plausibility” pleading standard that some district courts have derived from the Supreme… Read More

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:   In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are… Read More

In Chavious v. CBE Group, Inc., 2012 WL 113509 (E.D.N.Y. 2011), Judge Seybert granted summary judgment in a call-volume/FDCPA harassment case, finding that the call volume was not excessive in light of Plaintiff’s failure to answer the telephone or to tell the collector to stop calling.      Plaintiff has not established a triable issue of fact in this case.… Read More

In Dunkinson v. Citigroup Inc., 2012 WL 32573 (D.N.J. 2012), Judge Sheridan addressed within the context of FCRA, the FCBA, and the FDCPA a situation often foisted upon finance companies:  a divorced husband and wife’s divorce degree allocates financial responsibility to one divorced party, and the non-obligor spouse seeks to bind the finance company to that decree.  Judge Sheridan properly… Read More

In Engelen v. Erin Capital Management, 2012 WL 12680 (S.D.Cal. 2012), Judge Benitez found applicable the debt collector’s affirmative defense of ‘bona fide’ error when the debt collector continued to collect on an obligation that already had been satisfied due to garnishment.  The facts were as follows.  On December 5, 2007, Erin, with Eltman acting as legal counsel, brought a… Read More

In Hylkema v. Associated Credit Service Inc., 2012 WL 13681 (W.D.Wash. 2012), Judge Theiler rejected Plaintiff’s claims against a debt collector where the Plaintiff orally disputed his debt and asserted that the debt collector owed him certain affirmative obligations once he made such a dispute.  The Plaintiff claimed to have experience in the debt collection industry, yet the Court found… Read More

In Marx v. General Revenue Corporation, the Court of Appeals for the Tenth Circuit affirmed a district court's ruling after a bench trial that a fax by a debt collector to a debtor's employer to verify employment for purposes of wage garnishment was not a prohibited third party communication under the FDCPA.  The Court of Appeals explained: The facsimile in… Read More

In Fry v. Berks Credit and Collections, Inc., here, the Magistrate found no FDCPA telephonic harassment for 69 phone calls made to Plaintiffs’ home in two months, where there nineteen days during which Defendant placed three calls to Plaintiffs and five other days during which Defendant placed two calls, five days during which only one call was made and 24… Read More