FDCPA (Fed & State)

In Marchand v. Chase Bank USA, N.A., 2011 WL 1296711 (C.D.Cal. 2011), Judge Pregerson found that a debt collection counter-claim in federal court was permissive to the underlying Rosenthal Act claim, and declined to exercise supplemental jurisdiction to hear it.  (See, e.g. Sparrow v. Mazda American Credit, 385 F.Supp.2d 1063, 1068 (“breach of contract counterclaims for the underlying debt are… Read More

In Taylor v. Pinnacle Credit Services, LLC, 2011 WL 1303430 (N.D.Cal. 2011), Judge Spero applied Iqbal/Twombly to find that (1) determination of whether a form letter violates the FDCPA/Rosenthal Act can be decided as a matter of law, and (2) the debt collector’s letter, which stated that defendant was represented by an attorney from New Jersey who was not licensed… Read More

In Lucero v. Bureau Of Collection Recovery, Inc., --- F.3d ----, 2011 WL 1184168 (10th Cir. 2011), the Court of Appeals for the Tenth Circuit held that an FDCPA defendant may not deprive a class plaintiff of a justiciable controversy by serving a Rule 68 Offer of Judgment before class certification.  The facts and procedural history were as follows:    … Read More

In Vick v. NCO Financial Systems, Inc., 2011 WL 1157692 (E.D.Tex. 2011), Judge Ward found that a non-debtor third party had no standing to pursue a claim under the FDCPA, explaining:   NCO filed numerous objections to the report (Dkt. No. 96). The court overrules NCO's objections, except as to the issue of whether Mr. Vick has third-party standing to… Read More

In Montalvo v. Asset Acceptance, here, the District Court held that an FDCPA plaintiff lacked standing to assert the claim.  Since the Plaintiff failed to list the claim in Plaintiff's bankruptcy schedules, the doctrine of judicial estoppel operated to prevent the Plaintiff from asserting the claim post-discharge. Read More

In Yelin v. Swartz, 2011 WL 1103450 (E.D.Pa. 2011), Judge Buckwalter found that efforts to collect on a renter’s damage to a rental car constituted a ‘debt’ under the FDCPA, explaining:   In this case, Defendants argue that Plaintiff has failed to state an FDCPA claim because the money he owes does not qualify as a “debt” under the statute.… Read More

In Carman v. the CBE Group, Ltd., here, Judge Robinson found an absence of harassing intent under the FDCPA notwithstanding 149 phone call attempts in a two month period, 0-4 call attempts per day to the plaintiff's home phone number and 0-3 call attempts per day to the plaintiff's place of employment.   Judge Robinson explained:    In this case, the Court finds there… Read More

Today, the FTC submitted its Annual Report to Congress, here. Data in the report show that in 2010, as in other recent years, the FTC received more complaints about debt collection than any other single industry. Specifically, the agency received 140,036 debt collection complaints in 2010, up from 119,609 complaints in 2009. The top three categories of complaints about third-party collectors… Read More

In O'Rourke v. Palisades Acquisition, LLC, here, the Court of Appeals for the Seventh Circuit held that since the FDCPA protected only consumers (and not third parties), a state court pleading that arguably would have deceived the state court judge in a collection action was not actionable under the FDCPA.  In O'Rourke, the debt collector sought but failed to collect… Read More

In Weldon v. Asset Acceptance, LLC, 2011 WL 902018 (S.D.Ind. 2011), Judge Magnus-Stinson addressed the intersection between the Rooker-Feldman doctrine and res judicata with regard to a debt collector filing suit on a time-barred debt in state court.  Judge Magnus-Stinson held that the Rooker-Feldman doctrine did not deprive the district court of jurisdiction nor did res judicata provide the debt… Read More

In Coleman v. Credit Management LP, 2011 WL 913210 (N.D.Tex. 2011), Judge Lynn held that a separate counter-claim for bad faith is not the proper way for an FDCPA defendant to challenge a Plaintiff’s FDCPA claim on bad faith grounds.  Judge Lynn granted Plaintiff's Motion to Dismiss, holding held that a Defendant has the right to allege bad faith in post-judgment proceedings,… Read More

In Johnson v. Cabinsky, here, Judge Rykamp held that merely filing a collection action that loses does make an FDCPA claim.  Citing past precedent, Judge Rykamp explained:   Granting Defendant's Motion for Summary Judgment is consistent with this Court's decisions in Gonzalez v. Erskine, No. 08-20893-CIV-SEITZ, 2008 WL 6822207 (S.D. Fla. Aug. 7, 2008) and Sierra v. Rubin & Debski,… Read More

Courts have addressed the issue of whether misrepresentation or 'spoofing' of Caller IDs in collection calls can violate the FDCPA, and we have reported on such cases previously. Yesterday, the FCC issued a Notice of Proposed Rulemaking, with a comment deadline of April 18, 2011, regarding its implementation of regulatory and enforcement rules for the Truth in Caller ID Act… Read More

In McCullough v. Johnson, et. al., here, the Court of Appeals for the Ninth Circuit affirmed a large jury verdict against a debt collection law firm arising from the Firm's prosecution of a debt collection lawsuit. The facts, briefly stated, are as follows: A debt collection law firm in Montana was retained by a creditor to collect a credit card… Read More

In Wright v. Saxon Mortgage Services, Inc., 2011 WL 500798 (N.D.Cal. 2011), Judge Armstrong held that the Rosenthal Act's incorporation of federal law did not confer federal question jurisdiction, explaining: Even assuming that Plaintiff's sixth cause of action incorporates provisions of the FDCPA, relevant authority provides that federal question jurisdiction cannot be premised on that basis. See Ortega v. HomEq… Read More

In Meadows v. Franklin Collection Service, Inc., 2011 WL 479997 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit found in an unpublished opinion that a triable issue of material fact existed as to whether 300 telephone calls over a 2 ½ year period constituted harassment.     We find that the district court erred in granting summary judgment… Read More

In Scott v. Federal Bond and Collection Service, Inc., 2011 WL 176846 (N.D.Cal. 2011), Judge Koh found that a Rule 68 offer made in an FDCPA case might deprive a federal court of jurisdiction to hear the matter due to the absence of a case or controversy.  Judge Koh explained:   In support of their 12(b)(1) motion, Defendants rely on… Read More

In Bailey v. Household Finance Corp. of California, 2010 WL 4569950 (S.D.Cal. 2010), Judge Hayes found that a Plaintiff stated a tort claim arising from defendant’s recording of their collection communications, explaining:   Plaintiff alleges that Defendants violated California's Invasion of Privacy Act, California Penal Code § 630, et seq. by using “a software system that enables [Defendants] to secretly… Read More

In Narog v. Certegy Check Services, Inc., --- F.Supp.2d ----, 2011 WL 70595 (N.D.Cal.), Judge Illston found that credit reporting activity occurring after a debt was paid-in-full did not trigger FDCPA issues, explaining:    It is clear from plaintiff's pleadings that he has alleged that a debt existed at one time. However, plaintiff complains only of acts or omissions relating… Read More

In Allen v. LaSalle Bank, -- F.3d – (3d Cir. 2011), here, the Court of Appeals for the Third Circuit disagreed with the Ninth Circuit’s decision in Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934-39 (9th Cir. 2007) and found inter-counsel communications are subject to the FDCPA, explaining:    As noted above, the issue here is whether § 1692f(1)… Read More