In Koehn v. Delta Outsource Group, Inc., No. 19-1088 (7th Cir. September 29, 2019), here, the Court of Appeals for the Seventh Circuit had had enough with ingenious interpretations of dunning letters to create a purported violation of the FDCPA. An unsophisticated consumer is “uninformed, naïve, or trusting,” Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003), but nonetheless… Read More
In Carter v. Richland Holdings, No. 2:16-cv-02967-RFB-VCF, 2019 U.S. Dist. LEXIS 168010, at *12-15 (D. Nev. Sep. 30, 2019), the District Court granted summary judgment against an FDCPA Plaintiff. AcctCorp argues that it was not reporting the debt in connection to an attempt to collect the debt pursuant to 15 U.S.C. § 1692e, but to comply with the Fair Credit… Read More
In Bitzko v. Weltman, No. 1:17-CV-00458 (BKS/DJS), 2019 U.S. Dist. LEXIS 161495 (N.D.N.Y. Sep. 23, 2019), the District Court held that having to inquire about the consumer nature of a debt from putative class members in an FDCPA class action did not defeat class certification. Defendant asserts that using its records to identify potential class members, and then asking those… Read More
In Kayyal v. Enhanced Recovery Co., No. 17 CV 2718, 2019 U.S. Dist. LEXIS 161475 (N.D. Ill. Sep. 23, 2019), the District Court denied summary judgment to a debt collector who as alleged to have harassed a wrong-number customer. Distilled to its essence, the parties disagree about whether ERC called Kayyal after being told it had the wrong number and… Read More
In Gonzalez v. Sallie Mae Bank, No. 18cv2457, 2019 U.S. Dist. LEXIS 157007, at *3-5 (S.D. Cal. Sep. 12, 2019), Judge Burns held that a debt collector must meet the definition of a debt collector under the FDCPA, not just "hold out" inferences that it might be one. SMB points out that it is a lender, not a debt collector… Read More
They used to write the Official Staff Commentary, and give "Informal Staff Opinion" letters to industry to assist industry in complying with the FDCPA. Now, the FTC has filed a Comment in response to the CFPB's Notice of Proposed Rulemaking that can be found at https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-federal-trade-commissions-bureau-consumer-protection-matter-proposed-rule-request/final_-_cfpb_debt_coll_draft_comment_9-13_v2_1pm_ver_to_comm.pdf The FTC devotes almost half of their comment to reminding the CFPB that the… Read More
In Norton v. Lvnv Funding, No. 18-cv-05051-DMR, 2019 U.S. Dist. LEXIS 146863, at *15-16 (N.D. Cal. Aug. 28, 2019), Magistrate Judge Ryu held that equivocal pleading of a debt's consumer nature survived an FRCP 12(b)(6) motion. Defendants essentially argue that a plaintiff's allegations about consumer debt must be unequivocal and ironclad in order to withstand a Rule 12 challenge. This… Read More
Interpreting eleven (11) declarations from attorneys' on both sides of the FDCPA bar, Magistrate Judge Beeler reduced the rates sought by the Plaintiff's counsel in an FDCPA case in Bidwal v. Unifund Ccr, No. 3:17-cv-02699-LB, 2019 U.S. Dist. LEXIS 147004, at *17-23 (N.D. Cal. Aug. 27, 2019). The facts and outcome were summarized by the Court. The plaintiff defaulted on… Read More
In Williams v. Enhanced Recovery Co., LLC, No. 18-cv-03699-HSG, 2019 U.S. Dist. LEXIS 137631 (N.D. Cal. Aug. 14, 2019), Judge Gilliam granted summary judgment to a debt collector. The Court finds that ERC has carried its burden to establish an entitlement to the bona fide error defense, and the Court thus does not consider whether there is a material dispute… Read More
In DiNaples v. MRS BPO, LLC, No. 18-2972, 2019 U.S. App. LEXIS 23937 (3d Cir. Aug. 12, 2019), the Court of Appeals extended its Douglass decision to QR codes. There is no dispute that that provision plainly prohibits the QR code. Still, as other courts have observed, § 1692f(8) is rather expansive when read literally. It would seemingly prohibit including… Read More
It seems like an argument down the rabbit hole, but in Lavallee v. Med-1 Sols., LLC, No. 17-3244, 2019 U.S. App. LEXIS 23664, at *11-15 (7th Cir. Aug. 8, 2019), the Court of Appeal found that privately-linked debt collection e-mails were not collection communications, disagreeing with the debt collector's argument that its e-mails were, in fact, collection communications. Huh? Everyone… Read More
In Swartzlander v. Capital Mgmt. Servs., LP, No. 19cv580-WQH-BGS, 2019 U.S. Dist. LEXIS 127053, at *3-9 (S.D. Cal. July 30, 2019), Judge Hayes dismissed an FDCPA Plaintiff's claimed premised on collection letters sent to her counsel. Defendant contends that communications to a consumer's attorney are not actionable under the FDCPA, as determined by the Court of Appeals in the controlling case… Read More
In Timlick v. Ncb Mgmt. Servs., No. A152467, 2019 Cal. App. Unpub. LEXIS 4895 (July 23, 2019), the Court of Appeal in an unpublished decision applied the Rosenthal Act’s cure provision to a type-size violation. Plaintiff argues that section 1788.30(d)'s cure provision does not apply to NCB's type-size violation for the following reasons. First, section 1788.30(d) was repealed when the… Read More
In Cavalry SPV I, LLC v. Watkins, No. D072299, 2019 Cal. App. LEXIS 603, at *12-15 (Ct. App. July 1, 2019), the California Court of Appeal addressed the evidence necessary to prove up a credit card debt in a debt collection action. Assuming without deciding that California law applies, a party may accept a contract by conduct, as well as… Read More
In Muzyka v. Rash Curtis & Assocs., No. 2:18-cv-01097 WBS, 2019 U.S. Dist. LEXIS 111795, at *12-14 (E.D. Cal. July 3, 2019), Judge Shubb denied summary judgment to a debt collector on a call-volume case. Defendant is correct that many district courts considering Section 1692d(5) claims have granted summary judgment for defendants where there is a high volume of calls… Read More
In Byrge v. R. Elliott Halsey & Halsey, No. 18 C 3267, 2019 U.S. Dist. LEXIS 98478 (N.D. Ill. June 12, 2019), Judge Korcoran declined to dismiss an FDCPA claim filed against the principal of a debt collection agency. The Defendants next argue that Halsey should be dismissed as a defendant because "he at all times operated as a professional… Read More
In Eaton v. Midland Credit Mgmt., No. 16cv3025-MMA (MDD), 2019 U.S. Dist. LEXIS 82346 (S.D. Cal. May 15, 2019), Judge Anello held that TCPA/FDCPA claims survive a Plaintiff’s death. Additionally, the claims pleaded are not extinguished. Decedent asserted claims under the TCPA and FDCPA. See Doc. No. 1-1. The Ninth Circuit has recognized that claims under the [*3] FDCPA survive the… Read More
In Cooper v. Atl. Credit & Fin., No. 2:18-cv-01254-JHE, 2019 U.S. Dist. LEXIS 79011, at *15-16 (N.D. Ala. May 10, 2019), Judge England held that the FDCPA's "catch-all" provision under 1692f has limitations where allegedly offending conduct is expressly permitted under another section of the FDCPA. While Cooper cites a few cases standing for the proposition that certain conduct may… Read More
In Timlick v. Nat'l Enter. Sys., No. A154235, 2019 Cal. App. Unpub. LEXIS 3198 (May 7, 2019), the California Court of Appeal found that a type-size error was able to be cured under the Rosenthal Act’s safe harbor. While, strictly speaking, the legislative history of the Consumer Collection Notice law has no bearing in discerning the legislative intent of section… Read More
In Hall v. Southwest Credit Sys., L.P., 2019 U.S. Dist. LEXIS 73350, *5-11 (D.C. Dist. May 1, 2019), Judge Howell found that a debt collector's failure to report to the consumer reporting agencies that the account was "disputed" could violate multiple provisions of the FDCPA. This case concerns one allegation: The defendant reported a debt to credit bureaus that the… Read More
