The FTC issued its annual report on the FDCPA, accompanied by the following press release: At a time when many consumers are facing debt problems, the Federal Trade Commission has issued its annual report detailing the steps the agency has taken to protect consumers from unfair, deceptive, and abusive debt collection practices and educate the public on the subject. The 32nd… Read More
In Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge Albritton addressed the debt collector's summary judgment motion on a number of claims made by the Plaintiffs, among them that the the defendant's 33 calls in 1 month did not constitute harassment under the FDCPA. Judge Albritton rejected the debt collector's claim, explaining that Viewing this testimony… Read More
In Booth v. Mee, Mee & Hoge, P.L.L.C., 2010 WL 988473 (W.D.Okla. 2010), Judge DiGiusti applied a narrow reading of the Ninth Circuit’s holding in Slenk, and determined a debt’s ‘consumer purpose’ at the time of debt origination rather than a later consumer use of the collateral. Judge DiGiusti explained: Courts construing the FDCPA have generally held, however, that… Read More
In Gryzbowski v. I.C. System, Inc. --- F.Supp.2d ----, 2010 WL 774386 (M.D.Pa. 2010), Judge Vanaski held that cell phone messages are subject to Foti, explaining: Although there is no Third Circuit case law dealing with the appropriateness of identification of a debt-collector in a voicemail or answering machine message, numerous district courts have been faced with the issue and… Read More
In Osei v. Countrywide Home Loans, Inc. 2010 WL 727831 (E.D. Cal. 2010), Judge Karlton discussed the pleading standards for a Rosenthal Act claim. However, Judge Karlton did not discuss the heightened pleading standard for FDCPA claims as some other district courts have under Bell Atl. Corp. v. Twonbly, 550 U.S. 544, 555 (2007) and Ascroft v. Iqbal 129 S.Ct. 1937, 1949 (2009). … Read More
In Korzeniowski v. NCO Financial Systems, Inc. 2010 WL 466162 (D.Conn.2010), Judge Eginton held that a bare bones Complaint merely setting forth the FDCPA's legal requirements failed under Bell Atl. Corp. v. Twonbly, 550 U.S. 544, 555 (2007) and Ascroft v. Iqbal 129 S.Ct. 1937, 1949 (2009), explaining: [P]laintiff's complaint lacks any factual allegations entitled to deference under Iqbal by the Court. As the Supreme… Read More
In Vitullo v. Mancini, 2010 WL 438248 (E.D.Va. 2010) Judge Elliott addressed the question of whether the FDCPA allows for injunctive and declaratory relief that has the effect of cancelling or extinguishing a debt as a remedy for violations of the Act. Judge Elliott held that the FDCPA does not afford such relief and granted the defendant’s motion to dismiss. … Read More
In Leahey v. Franklin Collection, Inc., the District Court for the Northern District of Alabama found that an answering message heard by a third party still violated the FDCPA and Hosseinzadeh v. M.R.S. Assoc., Inc. 387 F.Supp.2d 1104 (C.D.Cal. 2005) notwithstanding a 3-second pause and instructions for third parties not to listen to the message. A copy of the decision… Read More
In Bryant v. Gordon & Wong Law Group, P.C., --- F.Supp.2d ----, 2010 WL 339086 (E.D.Cal. 2010), Judge England barred Plaintiff's FDCPA claim under the Rooker-Feldman Doctrine, explaining: The Rooker-Feldman Doctrine established the principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);… Read More
In Quale v. Unifund CCR Partners, --- F.Supp.2d ----, 2010 WL 338044 (S.D.Ala. 2010), Judge Granade addressed whether a debtor stated a claim under the FDCPA for the debt collector undertaking collection activities without validating the debt. The debtor pleaded that he requested validation, but the debt collector did not provide same. Although the debt collector undertook no further 'collection… Read More
The U.S. District Court for the Eastern District of California entered default judgments against two debt collectors in separate cases, reaching the same conclusion on different facts as to sums recoverable on default for emotional distress under the FDCPA. In Molina v. Creditors Specialty Services, Inc. 2010 WL 235042 (E.D. Cal. 2010), the District Court entered a default judgment against… Read More
In Gastineau v. Wright, --- F.3d ----, 2010 WL 154794 (7th Cir. 2010), the Court of Appeals for the Seventh Circuit approved of a reduction of a plaintiff’s counsel’s attorneys’ fees because of counsel’s experience prosecuting FDCPA matters, explaining: Duff argues that the district court abused its discretion by lowering his hourly rate from $250 to $150 based on… Read More
In Donohue v. Quick Collect, Inc. 2010 WL 103653 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit held that a complaint in a collection lawsuit is a debt collection "communication" to the debtor which, if false, may violate the FDCPA. The complaint alleged pre-assignment interest at 18%, which was not an illegal charge in violation Washington state's usury law because… Read More
In Ellis v. Solomon and Solomon, P.C., --- F.3d ----, 2010 WL 104570 (2d Cir. 2010), the Court of Appeals for the Second Circuit held that “service of process during the validation period must, at a minimum, be preceded or accompanied by notice to the consumer clarifying that the lawsuit does not in any way alter the information contained in… Read More
We noted that the U.S. Supreme Court has taken up the issue of the scope of the bona fide error defense to an FDCPA claim in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 2009 WL 803127 (2009). Oral argument was heard yesterday in the Jerman matter, and a transcript of the proceedings can be found here. Read More
In Nichols v. GC Services, LP, 2009 WL 3488365 (D. Ariz. 2009), the United States District Court for Arizona addressed purported threats regarding what the debt collector may or may not do: In determining whether a threat has been made, “the conditional nature of a statement, such as the use of the words ‘may’ or ‘possible,’ does not negate… Read More
A copy of the report can be found here. Read More
In Edwards v. Niagara Credit Solutions, Inc. 2009 WL 3273300 (11th Cir. 2009) the Court of Appeals for the 11th Circuit decided the validity of a debt collector's concerns that complying with the mini-Miranda requirement of the FDCPA risked violating the FDCPA's prohibition against third party disclosure. Or, as the Court of Appeals described it, whether the debt collector "had… Read More
In Fleming v. Heaton, the Court of Appeals for the Ninth Circuit held that the tort damages arising from a conversion cause of action do not arise out of a "transaction" under the FDCPA's definition of "debt". The Court of Appeals explained: We have held that “at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business… Read More
In Ruth v. Triumph Partners, Ltd., --- F.3d ----, 2009 WL 2487092 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit held that a debt collector’s inclusion of a Gramm-Leach-Bliley privacy notice with its debt validation letter violated the FDCPA. The Court of Appeals explained: Upon receiving and reading the collection letter and the notice, the only… Read More
