FDCPA (Fed & State)

The FDCPA offers no definitive number on how many telephone calls constitutes harassment under 15 U.S.C. 1692d(5) and Civil Code 1788.11(e).  Recent jurisprudence, at least under the FDCPA, has suggested that a showing of pattern, intent, and consumer complaints about the excessive calls may be required.  For example, in Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge… Read More

In Riggs v. Prober & Raphael, 2010 WL 3238969 (N.D.Cal.), Judge Fogel held that, under Iqbal and Twombly, an FDCPA plaintiff failed to state a claim for lack of meaningful attorney involvement or for violating the Camacho  standard for debt validation warnings.  As to the former, Judge Fogel explained,   Plaintiff contends that her allegations that (1) Defendants sent the… Read More

In Alexander v. Blackhawk Recovery and Investigation, L.L.C. --- F.Supp.2d ----, 2010 WL 3257355 (E.D.Mich.), Judge Steeh held that a repossessor might be subject to the FDCPA when the repossessor breaches the peace in connection with a vehicle repossession.   Judge Steeh explained:    In Montgomery v. Huntington Bank, the Sixth Circuit Court of Appeals found that Silver Shadow, the defendant-repossession… Read More

The report can be found here.  The FTC summarized its conclusions as follows: Based on the record from the roundtables (including the associated public comments) and its experience in debt collection matters, the Commission’s principal findings, conclusions, and recommendations with respect to debt collection litigation are:   n                                           States should consider adopting measures to make it more likely that consumers… Read More

In Hutton v. C.B. Accts. Inc., 2010 WL 3021904 (C.D.Ill. 2010), Judge McCuskey held that a debt collector’s message on an answering machine constituted collection activity under the FDCPA even though no collection activities were mentioned, following the 7th Circuit’s recent decision in Gburek v. Litton Loan Servicing LP, ---F.3d ----, 2010 WL 2899110, at *4 (7th Cir. 2010) and… Read More

In Janti v. Encore Capital Group, Inc. 2010 WL 3058260 (S.D.Cal. 2010), Judge Sammartino held that the Plaintiff stated a class action claim against a debt collector for allegedly collecting out-of-statute debt.  Judge Sammartino held that the Plaintiff had properly pleaded claims under the FDCPA and UCL, but not the FCRA, explaining that the least sophisticated consumer could have believed… Read More

In Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010), Judge Houston addressed the applicability of Foti to leaving voicemail messages on a debtor’s answering machine. Courts have held that not disclosing the above prescribed facts in a message left for the debtor can be a violation of § 1692e(11) [i.e. the mini-Miranda]. See Costa… Read More

In Durham v. Continental Cent. Credit, 2010 WL 2776088 (S.D.Cal. 2010), Judge Moskowitz disallowed injunctive relief under the FDCPA, explaining:   However, declaratory and injunctive relief are not available to private litigants suing under the FDCPA. The courts that have specifically addressed the issue of whether such relief is available to private plaintiffs in FDCPA actions uniformly hold that the… Read More

In Weakley v. Redline Recovery Services, LLC, --- F.Supp.2d ----, 2010 WL 2787656 (S.D.Cal. 2010), Judge Benitez allowed claims to proceed past the pleadings stage under the FDCPA and Rosenthal Act against a debt collection agency’s individual employees, explaining:   First, it is necessary for the Court to determine whether the term “debt collector” applies to the individual Defendants as… Read More

In Strom v. National Enterprise Systems, Inc., 2010 WL 1533383 (W.D.N.Y.,2010), Judge Foschio held that a debt collector’s assertion of the bona fide error defense allowed discovery into other complaints so as to allow Plaintiff to attempt to prove that the debt collector’s conduct was not unintentional and the result of a bona fide error.  Judge Foschio framed the issue… Read More

In Hamberg v. JP Morgan Chase Bank, 2010 WL 2523947 (S.D.Cal. 2010), Judge Huff refused to strike the Plaintiff’s claim for damages under the Rosenthal Act which sought a “per violation” penalty rather than a “per suit”.  Judge Huff explained:   Plaintiffs' SAC seeks statutory damages of $1,000 per violation of the Rosenthal Act. (SAC, prayer for relief.) The Rosenthal… Read More

In Lange v. CIR Law Offices, 2010 WL 2524089 (S.D.Cal. 2010) Judge Bencivengo found that a law firm engaged in debt collection whose post-judgment garnishment had erroneously garnished exempt social security funds did not violate the FDCPA.  Judge Bencivengo explained:    In the absence of any evidence that CIR had any knowledge of the nature of Lange's account prior to… Read More

In Day v. American Home Servicing, Inc. 2010 WL 2231988 (E.D.Cal. 2010), Judge Burrell held that a consumer stated a Rosenthal Act claim under the Iqbal/Twombly pleading standard for communicating with a represented party notwithstanding the fact that notice was not given in writing.  Judge Burrell explained:   Since the Rosenthal Act incorporates violations of the federal Fair Debt Collection… Read More

In Shuler v. Ingram & Associates, 2010 WL 1833626 (N.D.Ala. 2010), Judge Kallon addressed what constitutes harassment, both in substance and frequency.   As to substance, Judge Kallon listed to audiotapes and found that testiness and advising a consumer of the consequences of their (in)action did not violate the FDCPA.   Section 1692d(2) forbids debt collectors from “engaging in any conduct… Read More

See the Court of Appeals' decision in Rouse v. Law Offices of Rory Clark here. Read More

In Marcotte v. General Electric Capital Services, Inc., 2010 WL 1573680 (S.D.Cal. 2010), Judge Moskowitz held that the Rosenthal Act did not prohibit a credit card company from sending billing statements notwithstanding notice from the debtor’s counsel that the debtor was represented.    Judge Moskowitz summarized:   In summary, the Court concludes that billing statements are exempted under § 1788.17… Read More

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, --- S.Ct. ----, 2010 WL 1558977 (2010), Justice Sotomayor ruled that the bona fide error defense in §1692k(c) does not apply to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA.   The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692… Read More

In Elliott v. Credit Control Services, Inc., 2010 WL 1495402 (S.D.Cal. 2010) Judge Sabraw applied the more stringent pleading standard of Iqbal and Twombly to find that a debt collector’s use of the term “Warning Notice” with its debt validation letter neither overshadowed the debtor’s validation rights nor constituted an unfair debt collection practice.    In two recent opinions, the… Read More

In McCarther-Morgan v. Asset Acceptance, LLC, 2010 WL 1417868 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit affirmed Bankruptcy supremacy over the FDCPA and Rosenthal Act, explaining:    Betty Jean McCarther-Morgan appeals the dismissal of her adversary action against Asset Acceptance, LLC. McCarther-Morgan alleges violation of the Fair Debt Collection Practices Act (“FDCPA”) and the California Rosenthal… Read More

In Membrila v. Receivables Performance Management, LLC 2010 WL 1407274 (S.D.Cal.), Judge Gonzalez found that a consumer properly pleaded a claim against a debt collector for the manner of recording the collection calls, explaining:   California Penal Code § 632, on the other hand, does apply to recording by a participant to a conversation. Section 632 provides a civil remedy… Read More