On the same day that Judge Kelley issued the Velasquz decision, Judge Doty held the opposite in Carpenter v. RJM Acquisitions, LLC -- F.Supp.2d --, 2011 WL 2148382 (D. Minn. 2011): Carpenter failed to follow the appropriate statutory procedure to dispute the debt. See 15 U.S.C. § 1692g(b) (outlining steps for consumer to dispute debt). If the consumer does not dispute… Read More
In Velazquez v. NCO Financial Systems, Inc., 2011 WL 2135633 (E.D.Pa. 2011), Judge Kelley held that a debtor is not required to first dispute the debt before undertaking legal action: NCO argues that Velazquez's suit is improperly before us because a plaintiff must invoke the dispute procedures of § 1692(g) prior to taking legal action. In support of its… Read More
In Clingaman v. Certegy Payment Recovery Services (S.D. Tex. 2011), here, Judge Atlas found no telephonic harassment based purely on the number of calls to the consumer because, in part, “[d]uring roughly the same time period, Plaintiff filed nine (9) similar lawsuits against various other debt collectors. Plaintiff admitted in his deposition that he kept records of telephone calls from… Read More
In Hasbrouck v. Arrow Financial Services LLC, 2011 WL 1899250 (N.D.N.Y. 2011), Judge D’Agostino held that merely filing suit on a debt without documentation to support the debt at the time of the lawsuit does not violate the FDCPA, because a false or misleading representation requires materiality. The majority of district and appellate courts have routinely held that, “the filing… Read More
In Archer v. United Rentals, Inc. --- Cal.Rptr.3d ----, 2011 WL 1888199 (2011), the California Court of Appeal reversed a class certification under the Song-Beverly Credit Card Act on the basis that meeting the consumer-use requirement was an intensely fact driven inquiry. The decision is too lengthy to reproduce here, even in part, but the Court of Appeal’s summary is… Read More
The Rosenthal Act’s definition of ‘debt collector’ specifically ‘does not include an attorney or counselor-at-law’. (Cal. Civ. Code §1788.2(c)). Decisions universally hold that individual attorneys are exempt from the Rosenthal Act. (E.g. Lutge v Eskanos Adler, P.C. 2007 WL 1521551 (N.D. Cal. 2007). Cases split, however, on whether law firms enjoy the same exemption. Cases finding law firms not… Read More
Judge Mueller didn't actually channel the late-George Carlin. But, in Probasco v. IQ Data Intern., 2011 WL 1807429 (E.D. Cal. 2011), Judge Mueller held that Iqbal/Twombly require a Plaintiff to plead the profane or inappropriate language allegedly used by a debt collector. Before a debt collector's language falls within the prohibition against harassment, it must be “akin to profanity or… Read More
In Zortman v. J.C. Christensen & Associates, Inc., 2011 WL 1576475 (D.Minn. 2011), Judge Ericksen discussed the Foti chronology, and held that an FDCPA claim could be stated where a third party intercepts a voicemail message – even the post-Foti semi-anonymous ones -- if the debt collector had reason to suspect that someone other than the debtor would hear it. … Read More
In Tara v. AFNI, Inc., here, Judge Dalzell held that an identity theft victim has standing to sue a debt collector under the TCPA for calling the victim’s land-line (not the victim’s cell phone) with its autodialer, but found that debt collection calls made to land lines are exempt from the TCPA – whether made to debtors or innocent non-debtors. … Read More
In Donohue v. Nielson, --- P.3d ----, 2011 WL 1642914 (Wash.App. 2011), the Washington Court of Appeal found that successive debt collectors do not need to re-validate the debt; once is enough. The Court of Appeal explained: However, more recent cases have specifically disagreed. See Ditty v. CheckRite, Inc., 973 F.Supp. 1320, 1329 (D.Utah 1997) (“Section 1692g does not… Read More
In Young v. Asset Acceptance, LLC, 2011 WL 1766058 (N.D.Tex. 2011), Judge Ramirez found a triable issue of fact as to whether an FDCPA claimant was harassed by telephone in connection with the collection of a debt, explaining: To meet his summary judgment burden, Plaintiff must produce some evidence from which the intent to annoy, abuse, or harass may… Read More
In Sasscer v. Donnelly, 2011 WL 1522320 (M.D.Pa. 2011), Judge Munley explained what ‘validation’ is required in response to a consumer request under the FDCPA: The Third Circuit, then, has found sufficient a verification that informs the debtor of “the amounts of his debts, the services provided to produce those debts,” and “the dates on which the debts were… Read More
In Freid v. National Action Financial Services, Inc., Slip Copy, 2011 WL 1547257 (D.N.J. 2011), Judge Chesler denied class certification in an FDCPA claim alleging that debtors were conveyed a false sense of urgency in communications from the debt collectors. Judge Chesler found that secondary evidence of ‘scripts’ from the debt collector did not create uniformity, and questioned whether the… Read More
In Murphy v. Stephens & Michaels Associates, Inc., 2011 WL 1465761 (S.D.Cal. 2011), Judge Lorenz held that, at the pleading stage, whether a defendant was a “debt collector” was an affirmative defense for which Defendant owed the burden, not Plaintiff’s pleading burden. Plaintiff alleges a factual basis for relief she seeks under the FDCPA and the Rosenthal Act. Defendant argues… Read More
In Valero v. Bryant, LaFayette and Associates, LLC, 2011 WL 1438436 (E.D.Cal. 2011), Judge Austin set forth parameters for recovery of emotional distress damages under the FDCPA/Rosenthal Act within the context of a default prove-up hearing. This Court will apply the California IIED standard. See, Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10–11. Under California law, to… Read More
In Caudell v. Financial Credit Network, Inc., 2011 WL 1377643 (E.D.Cal. 2011), Judge O’Neill applied Iqbal/Twombly to find that Plaintiff had not adequately pleaded obscene or profane communications in connection with debt collection, nor did Plaintiff’s allegations of daily telephone calls rise to the level of pleading harassment. 15 U.S.C. § 1692d(2) “was meant to deter offensive language which is… Read More
In De Dios v. International Realty & Investments, --- F.3d ----, 2011 WL 1346956 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that a residential property manager was not a “debt collector” within the meaning of the FDCPA because it did not acquire the debt when in default. The facts were as follows: In 2001,… Read More
In Huertas v. Galaxy Asset Management, --- F.3d ----, 2011 WL 1361568 (3d Cir. 2011), the Court of Appeals for the Third Circuit held that a debt collector can collect on out-of-statute debt, but can not threaten litigation because it has no right to do so: Huertas's FDCPA claim against AMP turns on whether a debt collector may attempt… Read More
In In re Atwood, Slip Copy, 2011 WL 1331974 (Bkrtcy.D.N.M. 2011), Judge Jacobvitz followed Seventh Circuit authority, instead of the Ninth Circuit's decision in Walls, to hold that the Bankruptcy Code did not provide the exclusive remedy for a debt collector’s post-petition conduct violating the automatic stay. Defendants assert that Plaintiff's exclusive remedy for the Defendants' alleged post-petition collection… Read More
In Combs v. NCO Financial Systems, Inc., 2011 WL 1288686 (E.D.Pa. 2011), Judge Yohn affirmed the rule that a creditor, otherwise exempt from the FDCPA, can not be brought under its auspices through the doctrine of vicarious liability, explaining: In response to Capital One's motion, plaintiff does not explicitly contest or concede that Capital One is not a “debt… Read More
