In Rudek v. Frederick J. Hanna & Associates, P.C. 2009 WL 385804 (E.D.Tenn.2009), Judge Collier ruled on what constitutes proper verification of a debt in response to a debt collector’s 30 day letter under 15 U.S.C. § 1692g(b). Judge Collier held that independent validation requiring proving the merits of the obligation is not required: Defendant contends it complied with… Read More
In Gerber v. Citigroup, Inc. 2009 WL 248094 (E.D.Cal.2009), District Judge Moulds followed the Southern District's opinion in Sial v. Unifund CCR Partners, 2008 WL 4079281 (S.D.Cal.Aug.28, 2008), and rejected both the Norr-Pennington doctrine and the litigation privilege as defenses to a Rosenthal Act claim. This court is unpersuaded that the Noerr-Pennington doctrine bars actions under the FDCPA. Rather, this court finds… Read More
In Van v. Grant & Weber, the Court of Appeals for the Ninth Circuit held in an unpublished decision that including in collection letters certain location obligations permitted under the Rosenthal Act does not violate the FDCPA. The Court of Appeals explained: Van argues that this statement is misleading because California Civil Code § 1788.21(b) requires such notification only in… Read More
In Offril v. J.C.Penney, Inc., 2009 WL 69344 (N.D.Cal. 2009), Judge Hamilton held that notice by a consumer to a creditor that it was represented by counsel did not, for purposes of the FDCPA, constitute notice to the collection agency hired by the creditor to collect the debt. Judge Hamilton explained: Although plaintiff did not allege or argue that JC Penny's actual knowledge of… Read More
In Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), Judge Zimmerman gave guidance on what constitutes a permissible "statement of account" which may be sent to consumers notwithstanding notice that the consumer is represented by counsel. Civil Code §1788.14(c) prohibits a debt collector from initiating communications with the debtor about a consumer debt, other than to provide a statement… Read More
In Cassaday v. Union Adjustment Company, Inc. 2008 WL 4773976 (N.D.Cal. 2008), Judge Illston followed the decision in Sial v. Unifund CCR Partners, 2008 WL 4079281, *3-5 (S.D.Cal. Aug.28, 2008) by refusing to apply the Noerr-Pennington doctrine to bar FDCPA claims. However, Judge Illston did not follow Sial's holding that the litigation privilege does not provide a defense to FDCPA… Read More
In Mendoza v. Ruesga (2008) __ Cal.App.4th __, the Fourth District Court of Appeal declined to allow a defendant to assert an unclean hands defense to its purported violation of a consumer protection statute (in this case, California's Immigration Consultant's Act). The Court of Appeal, relying on analogy under California's UCL, used sweeping language as to why an unclean hands… Read More
In Pineda v. Saxon Mortgage Services, Inc. (C.D.Cal.2008) 2008 WL 5187813, Judge Selna held that a loan servicer was not subject to the FDCPA: The FDCPA only applies to to a "debt collector", which specifically excludes creditors and mortgage servicers. 15 U.S.C. 1692a(6)(F). Saxon cites persuasive authority to support this argument. In Perry v. Stewart Title, Co. 756 F.2d 1197… Read More
In Izenberg v. ETS Services, LLC (C.D.Cal. 2008) 2208 WL 5179088, Judge Morrow held that a foreclosure trustee is not subject to the FDCPA because foreclosure on the mortgaged property is not the collection of a 'debt' under the FDCPA. To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a 'debt collector'… Read More
In Seeger v. AFNI, Inc., -- F.3d -- 2008 WL 512416 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit addressed a debt collector's contention that its reliance on periodic bulletins from the American Creditor Association ("ACA") gave rise to a 'bona fide error' defense to the plaintiff's claim that, under Wisconsin law, the debt collector could not… Read More
In a decision of probably more personal than professional importance, Judge Pregerson held that Law Enforcement System's Inc.'s collection outstanding toll violations on Hwy 91 was not subject to the FDCPA. (Yazo v. Law Enforcement Systems, Inc. (C.D.Cal.2008) 2008 WL 4852965). Hwy. 91, for those non-southern-Californians, is a toll road which connects the Orange County beach cities to San Bernardino and… Read More
In McKinney v. Cadleway Prop., Inc. (7th Cir. 2008) __ F.3d. __, the Court of Appeals for the Seventh Circuit defined the extent to which an assignee purchasing a debt in default becomes subject to the FDCPA. The Court of Appeals held that "the purchaser of a debt in default is a debt collector for purposes of the FDCPA even… Read More
In Yang v. DTS Financial Group (U.S.D.C. No. 07-CV1731JLS (WMc)), Judge Sammartino of the U.S.D.C. for the Southern District of California opined on whether a 'for profit' credit counseling service fell outside the FDCPA. On an FRCP 12(b)(6) motion, Judge Sammartino held that the plaintiffs had pleaded adequate facts to surve the Motion. The plaintiff had pleaded: Before May 1, 2006,… Read More
In Great Seneca Financial v. Holtzclaw, (L.A.Super. No. LC075416), Superior Court Judge Lichtman granted Summary Adjudication to Great Seneca Financial against the debtor's FDCPA claim. The debtor argued that Great Seneca had not qualified to do business in California at the time Great Seneca filed a collection action against the debtor. Judge Lichtman rejected that argument as factual basis for… Read More
It's not an automobile case, but is interesting for statements of law applied. In Galindo v. Financo Financial, Inc., 2008 WL 4452344 (N.D.Cal. 2008), Judge William Alsup required strict compliance with the CLRA's pre-filing notice requirement: California courts require “strict” compliance with Section 1782. Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 40-41, 124 Cal.Rptr. 852 (1975). Plaintiffs filed the… Read More
In Roybal v. Equifax, Judge England issued three separate opinions addressing liability of furnishers and credit reporting agencies. In Roybal v. Equifax, 2008 WL 453447 (E.D.Cal. 2008), Judge England addressed the CRAs for publishing allegedly inaccurate credit information about the plaintiff. First, Judge England allowed a wife to pursue a claim for inaccuracies in the husband's credit report: The… Read More
In Boyle v. Arrow Financial Services, LLP, 2008 WL 4447727 (N.D.Cal. 2008), Judge Hamilton addressed whether a debt collector violates the FDCPA by including the following language in a collection letter: The letter also stated: “As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting… Read More
Numerous California state and federal decisions discuss arbitration clauses. But recently only a few federal court decisions had addressed the specific situation of whether FDCPA claims fall within or outside an arbitration agreement. (E.g. Gerber v. Citigroup, Inc. 2008 WL 596112 (E.D.Cal.2008) (FDCPA claim not arbitratable because valid arbitration agreement between parties not found); Tickanen v. Harris & Harris, Ltd., 461 F.3d… Read More
In Miller v. Midland Funding, LLC, 2008 WL 4093004 (C.D.Cal. 2008), Judge Otis Wright clarified the type of penalties and damages recoverable under the FDCPA. As to the $1,000 penalty, Judge Wright explained: Defendants are correct that statutory damages are limited to $1,000 per action, not $1,000 per defendant. Clark v. Capital Credit & Collection Services, Inc. 460 F.3d 1162, 1178 (9th… Read More
In Catalfamo v. Countrywide Home Loans, 2008 WL 4158432 (E.D.Cal. 2008), Judge O'Neal held that the FDCPA does not afford a right to punitive damages, since the FDCPA already affords a right to a penalty. Mr. Catalfamo may not recover punitive damages for his RESPA, FDCPA, and breach of contract claims. RESPA and FDCPA provide for compensatory relief, reasonable attorneys'… Read More
