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’ collecting a ‘debt’. Ines v. Countrywide Home Loans No. 08CV1267 WQH(NLS) 2008 WL 4791863 *2 (S.D.Cal.2008). ¶ Plaintiffs allege that ETS has ‘violated provisions of . . . the [FDCPA]. They do not allege that ETS is a debt collector, however, nor identify the provisions of the act that have purportedly been violated. Because plaintiffs do not assert that ETS is a debt collector, they fail to state a claim under the FDCPA. Furthermore, because “foreclosing on a property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA” id. citing Hulse v. Ocwen Fed. Bank 195 F.Supp.2d 1188, 1204 (D.Or. 2002) (internal quotations marks omitted), they do not plead that ETS was ‘collecting a debt’.
The court similarly found an absence of liability under the Rosenthal Act for identical reasons. This case also follows similar decisions in California. E.g. Tina v. Countrywide Home Loans, Inc. (S.D.Cal. 2008)2008 WL 4790906. See generally “When Repossession, Foreclosure, and Other Acts Are Not ‘Debt Collection’ Under Fair Debt Collection Practices Statutes,” 59 Cons. Fin. Law. Quarterly 169, 170-71 (Spring-Summer 2005)