Pleading Requirements

In Ringenbach v. DirecTV, LLC, No. 4:21 CV 1400 CDP, 2022 U.S. Dist. LEXIS 214026, at *2-4 (E.D. Mo. Nov. 29, 2022), Judge Perry denied a debt collector's motion to compel discovery of settlements with other co-defendants because she held that offset is not an affirmative defense under the FCRA/FDCPA. I.C. System's motions will be denied as it cites no… Read More

In Castorina v. Bank of Am., N.A., No. 2:21-cv-02004 WBS KJN, 2022 U.S. Dist. LEXIS 83039, at *13-14 (E.D. Cal. May 5, 2022), Judge Shubb dismissed a Rosenthal Act claim under Rule 9(b). The heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to claims under the Rosenthal Act when premised on allegations of fraud, and here plaintiff's… Read More

In Poghosyan v. First Fin. Asset Mgmt., No. 1:19-cv-01205-DAD-SAB, 2020 U.S. Dist. LEXIS 14137 (E.D. Cal. Jan. 27, 2020), Judge Drozd found that a plaintiff might be able to state a claim for improper debt collection under the CLRA. Although the California Supreme Court has not yet addressed whether the CLRA applies to certain types of financial transactions such as… Read More

In Youssofi v. Allied Interstate LLC, 2016 WL 29625, at *2-3 (S.D.Cal., 2016), Judge Curiel struck an FDCPA defendant's assertion of FDCPA pre-emption over the Rosenthal Act. Plaintiff argues that these affirmative defenses fail as a matter of law and cites to the holding in Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011). Defendant opposes contending… Read More

In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More

In Jacobson v. Persolve, LLC, 2014 WL 4090809 (N.D.Cal. 2014), Judge Koh found an FDCPA class-action defendant’s Rule 68 offer to the class representative did not moot either the Action or the represenative’s ability to bring class claims. The Court agrees with Persolve that Plaintiff's Motion to Strike Persolve's Offer of Judgment is procedurally improper. Persolve's Offer of Judgment was… Read More

In Smith v. Law Offices of Patenaude & Felix, A.P.C., 2014 WL 3695473 (S.D.Cal. 2014), Judge Hayes found that a debtor must plead by clear and convincing evidence that the debtor did not receive a debt validation letter from the debt collector. Congress enacted the FDCPA to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting… Read More

In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring.  The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More

In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses.  Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More

In Raab v. Nationwide Collection Agencies, Inc., 2013 WL 53760 (W.D.Mich. 2013), Judge Bell found Plaintiff's threadbare FDCPA claim that defendant wrongfully threatened to garnish her wages failed to state a claim. The statutory violations alleged are simply a formulaic recitation of the prohibitions contained in the statutes. Plaintiff has not alleged what Defendant said or did to represent or imply that… Read More

In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More

In Wiebe v. Zakheim & Lavrar, P.A., 2012 WL 5382181 (M.D.Fla. 2012), Judge Smith found that a debt collector had adequately pleaded facts supporting a ‘bona fide error’ affirmative defense. The Defendant's First Affirmative Defense of “bona fide error,” is based upon 15 U.S.C. § 1692k(c) which provides that under the FDCPA, a debt collector is shielded from liability if… Read More

In Keshishian v. AFNI Inc., 2012 WL 5378819 (C.D.Cal. 2012), Judge Feess dismissed Plaintiff’s claims as improvidently pleaded.  Plaintiff Marine A. Keshishian alleges that Defendants Afni, Inc., Enhanced Recovery Company, LLC, Equable Ascent Financial, LLC (“Equable”), and Union Adjustment Company, Inc. are engaged in unfair debt collection practices. (Docket No. 3 [Compl.].) Specifically, Plaintiff alleges violations of the Federal Fair… Read More

In Ansari v. Electronic Document Processing, Inc., 2012 WL 3945482 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to FDCPA affirmative defenses. This Court previously considered both of Defendants arguments in Perez. With respect to Defendants' first argument, as set forth in Perez, notwithstanding the textual differences between Rule 8(a)(2) and Rule 8(b)(1)(a), “it is well established that ‘[a]ffirmative defenses are governed… Read More

In Ear v. Empire Collection Authorities, Inc., 2012 WL 3249514 (N.D.Cal. 2012), Judge Conti addressed the post-Iqbal/Twombly standard required for pleading affirmative defenses under the Rosenthal Act/FDCPA. It is true that there is a split within this circuit, but judges in this district have, uniformly so far as the undersigned can tell, adopted the plausibility standard. E.g., Barnes v. AT… Read More

In Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to a debt collector’s affirmative defenses, and addressed what affirmative defenses are available to an FDCPA/Rosenthal Act claim. Next, the parties dispute the scope of defenses available to Defendants under the FDCPA. Plaintiff argues that all of Defendants' affirmative defenses, except for… Read More

In Gutierrez v. State Farm Mut. Ins. Co.,  2012 WL 398828 (N.D.Cal. 2012), Judge Davila addressed the rights of a non-contracting spouse to sue under an automobile RISC and under the Rosenthal Act.      Plaintiffs are husband and wife.  Husband purchased a limited edition 2007 Pontiac Solstice (the “vehicle”), financed by defendant finance company.  Husband contracted with Defendant State… Read More

In Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221 (N.D.Cal. 2012), Judge Conti imposed the higher Iqbal/Twombly pleading standards to a debt collector’s pleading affirmative defenses.    The parties dispute which standard should apply to the instant motion. Plaintiffs urge this Court to apply the heightened “plausibility” pleading standard that some district courts have derived from the Supreme… Read More

In Vasquez v. State Recovery Systems, Inc., 2011 WL 6012326 (E.D. Cal. 2011), Judge Burrell found Plaintiff’s recitation of the legal requirements of the Rosenthal Act and FDCPA insufficient to state a claim under Iqbal/Twombly.    Plaintiff's FAC essentially comprises the following allegations: “Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6) and Cal. Civ.Code… Read More

In Lopez v. Professional Collection Consultants, 2011 WL 4964886 (C.D.Cal. 2011), Judge Gutierrez granted a debt collector's Motion to Dismiss a telephonic harassment case, with leave to amend, holding: There are no facts alleged as to the content of the calls. And the confusing statement that Defendant made “up to three [ ] collection calls five [ ] times per week”… Read More