FDCPA (Fed & State)

On the heels of the October 2020 Debt Collection Final Rule issued by the Consumer Finance Protection Bureau (CFPB), on December 18, 2020, the CFPB issued an additional final rule implementing the Fair Debt Collection Practices Act. The December 2020 final rule and an executive summary are available here: https://www.consumerfinance.gov/compliance/compliance-resources/other-applicable-requirements/debt-collection/. The December 2020 final rule primarily addresses the (1) requirements… Read More

In Reygadas v. DNF Assocs., LLC, No. 19-3167, 2020 U.S. App. LEXIS 38989 (8th Cir. Dec. 14, 2020), the Court of Appeals held that a debt buyer was subject to the FDCPA. Emphasizing that the Supreme Court in Henson overruled the so-called "default test," DNF argues that the debt buyer is a creditor -- a person "to whom a debt… Read More

In Maclean v. Collection Bureau of Am., Ltd., No. 3:20-cv-00426-JLS-DEB, 2020 U.S. Dist. LEXIS 233508 (S.D. Cal. Dec. 11, 2020), Judge Sammartino dismissed an FDCPA claim based on language in a validation letter regarding fee accrual. Defendant contends that the language included in the collection letter is appropriate and is nearly identical to the language relied on by multiple circuits… Read More

In Dollaga v. Specialized Loan Servicing Llc, No. 20-cv-07472-JSC, 2020 U.S. Dist. LEXIS 233610 (N.D. Cal. Dec. 11, 2020), Magistrate Judge Corley remanded a Rosenthal Act claim for wont of federal question jurisdiction. Plaintiff's complaint seeks damages and injunctive relief for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference… Read More

In Alan v. JP Morgan Chase Bank, NA, No. 2:20-cv-04544 AB (AFMx), 2020 U.S. Dist. LEXIS 230614 (C.D. Cal. Dec. 7, 2020), Judge Birotte denied a motion for reconsideration of his ruling in favor of a creditor under the Rosenthal Act. Further, as the Court previously noted, standing under the Rosenthal Act occurs when a Plaintiff "owes the debt or… Read More

In Woodard v. O'Brien, No. 2:18-cv-1523, 2020 U.S. Dist. LEXIS 228608 (S.D. Ohio Dec. 4, 2020), Judge Marbley addressed the standards for an ID theft victim to prove an FDCPA claim. When determining if an individual is a "consumer" under the FDCPA, the typical inquiry is to ask whether the debt was for "personal, family, or household purposes." Martin v.… Read More

In Barbosa v. Midland Credit Mgmt., No. 19-1896, 2020 U.S. App. LEXIS 37174 (1st Cir. Nov. 25, 2020), the First Circuit Court of Appeal affirmed referring a matter to arbitration. A resident of Massachusetts, Barbosa opened a credit card account with Barclays Bank Delaware ("Barclays") in April 2011. The last payment she made on the account was in November 2012.… Read More

In Manikan v. Peters & Freedman, L.L.P., No. 19-55393, 2020 U.S. App. LEXIS 37176 (9th Cir. Nov. 25, 2020), the 9th Cir. distinguished its Walls decision to allow an FDCPA claim to proceed because the claim did not depend on the issuance or enforcement of the discharge order. P&F contends that Walls categorically bars a discharged debtor's FDCPA claims brought against… Read More

In Elbert v. RoundPoint Mortg. Servicing Corp., No. 20-cv-00250-MMC, 2020 U.S. Dist. LEXIS 221611 (N.D. Cal. Nov. 25, 2020), Judge Chesney allowed a Rosenthal Act claim to proceed against a mortgage servicer based on charges assessed when the consumer made payments by telephone. As noted, a violation of the FDCPA constitutes a violation of the Rosenthal Act as well. See… Read More

In Mercedes v. Nat'l Bus. Factors, No. 19-16055, 2020 U.S. App. LEXIS 35037, at *2-3 (9th Cir. Nov. 5, 2020), the Court of Appeals for the Ninth Circuit held that a debt collector does not discharge its FDCPA obligations and trigger the bona fide error defense by requiring its creditor/clients to give accurate information. In this appeal, we consider whether… Read More

In Rogoff v. Nat'l Credit Sys., No. 2:19-cv-01131-APG-NJK, 2020 U.S. Dist. LEXIS 204753, at *7-8 (D. Nev. Nov. 2, 2020), Judge Gordon denied a motion for judgment on the pleadings to a debt collector collecting apartment rent. Viewing the facts alleged in the light most favorable to Rogoff, the complaint adequately alleges a false representation of the amount of the… Read More

In Lembeck v. Arvest Cent. Mortg. Co., No. 20-cv-03277-VC, 2020 U.S. Dist. LEXIS 205511, at *1-5 (N.D. Cal. Nov. 3, 2020), Judge Chhabria denied a mortgage servicer's FRCP 12(b)(6) motion regarding the propriety of the servicer's charging the Plaintiffs an IVR fee to make their mortgage payments. Valerie Lembeck alleges that her mortgage servicer, Arvest Central Mortgage Company, violates California… Read More

The CFPB has issued its Final Debt Collection rule:  https://www.consumerfinance.gov/policy-compliance/guidance/other-applicable-requirements/debt-collection/ The CFPB's Executive Summary is here:  https://files.consumerfinance.gov/f/documents/cfpb_october_2020_debt_collection_executive_summary.pdf We are reviewing the new Final Rule, and will be publishing period updates.  Stay tuned! Read More

In Denicolo v. Hertz Corp., No. 19-cv-00210-YGR, 2020 U.S. Dist. LEXIS 181248 (N.D. Cal. Sep. 30, 2020), Judge Rogers denied a debt collector’s MSJ arising out of a rental car contract  arising from a debtor’s business trip. In Chyba, defendant claimed that plaintiff had incurred damage to a rental vehicle and that summary judgment on the FDCPA claim should be… Read More

On September 25, 2020, Governor Newsom signed a number of bills, including AB 1864, which established the Department of Financial Protection and Innovation (“DFPI”) in place of the Department of Business Oversight (“DBO”), and SB 908, the Debt Collection Licensing Act. Both bills were passed by the California legislature in late August 2020, and are touted by Governor Newsome as… Read More

In Nagan v. Solutions, No. 19-C-170, 2020 U.S. Dist. LEXIS 155492 (E.D. Wis. Aug. 27, 2020), Judge Griesbach held that Wisconsin residents are not protected by California’s Rosenthal Act. The Rosenthal Act Plaintiff also asserts a claim under the Rosenthal Act, California's counterpart to the FDCPA that protects residents of California. Because Plaintiff was never a resident of California, the… Read More

In Calogero v. Shows, Cali & Walsh, L.L.P., No. 19-30558, 2020 U.S. App. LEXIS 26109 (5th Cir. Aug. 17, 2020), the Court of Appeals for the Fifth Circuit said that the US Government’s retention of private debt collectors to collect overpayment of compensation to victims of Hurricane Katrina arose out of a “transaction” under the FDCPA. When Congress passed the… Read More

In Elbert v. Roundpoint Mortg. Servicing Corp., No. 20-cv-00250-MMC, 2020 U.S. Dist. LEXIS 150341 (N.D. Cal. Aug. 19, 2020), Judge Chesney dismissed a Rosenthal Act claim because the account was not in delinquent. In Count II, Elbert asserts RoundPoint has violated the Rosenthal Act, which Act provides that "[n]o debt collector shall collect or attempt to collect a consumer debt… Read More

In Lawrence v. First Fin. Inv. Fund V, No. 2:19-cv-00174-RJS-CMR, 2020 U.S. Dist. LEXIS 149122 (D. Utah Aug. 17, 2020), Judge Shelby certified an FDCPA class after the class representative abandoned any claim for emotional distress because such damage claim could not be pursued on a representative basis. Next, First Financial argues Lawrence's claims are atypical of the proposed classes… Read More

In Mercedes v. Nat'l Bus. Factors, No. 19-16055, 2020 U.S. App. LEXIS 25996 (9th Cir. Aug. 17, 2020), the Court of Appeals for the Ninth Circuit rejected application of the bona fide error defense where the debt collector outsourced its compliance obligations through a boilerplate agreement with the creditor. The parties do not dispute that NBF unintentionally violated the FDCPA… Read More