In Marcotte v. General Electric Capital Services, Inc., 2010 WL 1573680 (S.D.Cal. 2010), Judge Moskowitz held that the Rosenthal Act did not prohibit a credit card company from sending billing statements notwithstanding notice from the debtor’s counsel that the debtor was represented.
Judge Moskowitz summarized:
In summary, the Court concludes that billing statements are exempted under § 1788.17 for three reasons. First, § 1788.17 incorporate specific federal statutes, but those statutes must be read in the context of a statutory scheme that permits and requires credit-card companies to send billing statements. Second, § 1788.17 is modified by 1788.14(c). Any other interpretation would result in an implied repeal-a result disfavored by both California and federal law. And third, Plaintiff’s construction would result in the pre-emption and partial invalidity of § 1788.17, as explained above.
Judge Moskowitz also concluded that the statements at issue were, in fact billing statements or “statements of account” – permissible under the Rosenthal Act.
The two documents are “statements of account” under California Civil Code § 1788.14(c). California Civil Code § 1810.3 states what should be included in a statement of account: (1) the outstanding balance, (2) transactions, (3) finance charges, (4) the interest rate and charges, and the (5) the billing cycle, among other things. The billing statements at issue here contain all of this information and nothing else that would change the billing statements into demand letters or efforts at debt collection. The statements do not state that any amounts are past due, and there is no indication that the documents are aimed at debt collection. Instead, one states that no payment is due, and the other states that a standard minimum payment of $118 is due. (See Compl. Exs. B, C.) ¶ Third, the two documents are “periodic statement[s]” under TILA and Regulation Z. See 12 C.F.R. § 226.7(b) (requiring; 15 U.S.C. § 1637(b) (creditors must send “statement” to consumer). Under federal law, periodic statements require information substantially similar to that under state law: (1) the out-standing balance; (2) transactions; (3) credits; (4) interest rates, charges, and fees; (5) a grace period; (6) and the due date, among other things. See 12 C.F.R. § 226.7(b). Again, the billing statements here contain all of this information and nothing else that would change the billing statements into demand letters or efforts at debt collection. ¶ In short, there is nothing that would lead the Court to believe that these two documents, which the Plaintiff refers to as billing statements, are anything but statements of account under California law and periodic statements under federal law. Because the documents at issue here are billing statements, and based on the reasoning in the preceding sections, Defendants can-not be held liable for issuing them.
The Court did not address Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), which also gave guidance on this subject. See http://www.calautofinance.com/?p=375