In Monahan v. NRA Group L.L.C., 2011 WL 3901877 (D.Conn. 2011), Judge Hall found that a debt collector’s statements that collections would continue were not oppressive to the debtor: Section 1692d is meant to protect debtors from oppressive and outrageous conduct, but not from every negative consequence of debt collection. See Bieber v. Assoc. Collection Servs., Inc., 631 F… Read More
In Cannon v. Spokane Merchants Ass'n, 2011 WL 3754697 (E.D.Wash. 2011), Judge Suko found an absence of federal jurisdiction under the Rooker-Feldman doctrine to hear Plaintiff’s FDCPA claim based on the manner in which the debt collector had obtained the underlying state court judgment on the debt. The Ninth Circuit has since held that Rooker–Feldman does still apply to… Read More
In Branco v. Credit Collection Services Inc., 2011 WL 3684503 (E.D.Cal. 2011), Judge Damrell ruled on a number FDPCA/Rosenthal Act claims. The highlights related to the number of calls relevant to a harassment claim and to the standard applicable to proof of ‘actual damages’ under the Rosenthal Act. As to the harassment claim, Judge Damrell held that: In the… Read More
In Griffiths v. Sentry Credit, here, Judge Aitken found no intent to harass under FDCPA for 2 answered calls and 12 unanswered calls to the debtor. Read More
In Moriarity v. Henriques, 2011 WL 3568435 (E.D.Cal. 2011), Judge Thurston found that an in pro per debtor could state a claim against a law firm under the Rosenthal Act, but not against its individual attorneys, explaining: Notably, the RFDCPA excludes attorneys from the definition of “debt collectors” while the FDCPA does not. Compare Cal. Civ.Code § 1788.2(c) ( “the term ...… Read More
In Carr v. Asset Acceptance, LLC, 2011 WL 3568338 (E.D.Cal. 2011), Judge O'Neill protected a debt collector from a UCL/Malicious Prosecution lawsuit deriving from rather uncomplicated facts. AA was a debt buyer who retained a law firm, FFG, to collect on a charged off account. FFG sued. When the debtor propounded discovery asking for the factual basis of the debt, FFG… Read More
In Clements v. HSBC Auto Finance, Inc., 2011 WL 2976558 (S.D.W.Va. 2011), Judge Berger rendered an award based largely on statutory penalties under the West Virginia state-law version of the FDCPA. Upon the following facts, the Court awarded $5,000 in compensatory damages. On August 12, 2006, Defendant loaned Plaintiffs, Mr. and Mrs. Clements, $16,252.92, to be paid over seventy-two… Read More
In Unangst v. Evans Law Associates, P.C., --- F.Supp.2d ----, 2011 WL 2855318 (N.D.N.Y., 2011), Judge Sharpe declined to exercise jurisdiction over the debt collection counter-claim in a pending FDCPA action, explaining: While not directly ruling on the issue, the court notes Unangst's argument and finds persuasive the line of cases which have held that even if supplemental jurisdiction were found, there… Read More
In Hunt v. Sallie Mae, Inc., 2011 WL 2847428 (E.D.Mich. 2011), Judge Zatkoff held that the HEA pre-empted Michigan’s state law debt collection statutes, explaining: Defendant contends that Plaintiff's state-law claims fail to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) because they are preempted by the HEA. Defendant asserts that the HEA requires it to make diligent efforts to… Read More
In Smith v. EVB, 2011 WL 2689061 (4th Cir. 2011), the Court of Appeals found a mixed-use commercial/consumer debt to possibly be subject to the FDCPA. The loan transactions were as follows: According to Smith, the purpose of the 2004 loan was the purchase and ownership of Smith's per-sonal residence (“the Wilton House”). Smith con-tends that he created Piedmont for the sole… Read More
In Martinez v. CACH, LLC, 2011 WL 2560251 (S.D.Cal. 2011), Judge Sabraw rejected a debt collector’s Rooker-Feldman argument. Further, Judge Sabraw rejected the argument that a Rule 68 offer mooted the class-action proceedings because the net worth requirement of a class-action under the FDCPA was not met due to alter ego allegations. Plaintiff is alleged to have incurred debt… Read More
In Gonzalez v. CNA Foreclosure Service, Inc., 2011 WL 2580681 (S.D.Cal. 2011), Judge Anello held that a foreclosure trustee was not a debt collector under federal and state law, and that inclusion of the FDCPA’s ‘mini-Miranda’ in statutory notices did not otherwise render the trustee subject to the FDCPA. Based on Ms. Canty's undisputed testimony, the Court concludes CNA… Read More
In Gusman v. Modern Adjustment Bureau, 2011 WL 2580358 (C.D.Cal. 2011), Judge Collins applied Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir.2002) to bar a plaintiff’s FDCPA claim. In Walls, the Ninth Circuit held that claims under the FDCPA are precluded when they are premised on an alleged violations of the Bankruptcy Code, in particular the… Read More
In Grden v. Leikin Ingber & Winters PC, --- F.3d ----, 2011 WL 2518901 (6th Cir. 2011), the Court of Appeals found that certain statements provided by a debt collector to a debtor about the status of an account were not subject to the FDCPA, particularly when made in response to a consumer inquiry. The text of § 1692e makes… Read More
In Lynch v. Nelson Watson & Associates, LLC, 2011 WL 2472588 (D.Kan. 2011), Judge Melgren held that 56 calls in a 3 month period was not too many under the FDCPA. In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The record is lacking any indicia of the type of egregious conduct… Read More
In In re Bate, --- B.R. ----, 2011 WL 2469689 (Bkrtcy.M.D.Fla. 2011), Bankruptcy Judge Williamson held that although the National Bank Act preempts state laws that prevent or significantly interfere with the exercise by national banks of their powers, and the Florida Consumer Collection Practices Act applies generally to all creditors and prohibits inappropriate debt collection practices, the FCCPA does… Read More
In Leasure v. Willmark Communities, Inc., 2011 WL 2267598 (S.D.Cal. 2011), Judge Lorenz found no controlling Ninth Circuit authority holding that rent was not a debt under the FDCPA and, accordingly, found that rent was debt under the FDCPA, following Romea v. Heiberger & Assoc., 163 F.3d. 111, 114-15 (2d Cir. 1998). Read More
In Cordes v. Frederick J. Hanna & Associates, P.C, 2011 Wl 2214939 (D. Minn. 2011), Judge Kyle followed Zortman v. J.C. Christensen & Assoc., Inc., 2011 WL 1630935 (D. Minn. 2011) in holding a debt collector liable for inadvertent disclosure to third parties by way of voicemail messages left on an answering machine. Judge Kyle rejected the debt collector's argument… Read More
In Lesher v. Law Offices Of Mitchell N. Kay, PC, --- F.3d ----, 2011 WL 2450964 (3d Cir. 2011), the Court of Appeals for the Third Circuit held that a law firm’s use of its letterhead in collection activities implied potential legal action, notwithstanding disclaimers to the contrary on the back of the letter. Nor do we believe that… Read More
In Young v. BC Services, Inc., 2011 WL 2443765 (S.D.Ala. 2011), Judge Bivens allowed a debt collector to withhold production of recordings of its debt collection conversations with the Plaintiff until after the plaintiff was deposed so that the impeachment value of the recordings would not be lost. Judge Bivens described the procedural history as follows: This is an… Read More
