In Ruvalcaba v. Ocwen Loan Servicing, LLC, 2016 WL 7178855 (S.D. Cal. 2016), the Court held that billing statements were permitted to be sent to a debtor despite being represented by counsel.
Plaintiff alleges that Ocwen violated both 15 U.S.C. § 1692c (incorporated by reference in the California FDCPA by California Civil Code § 1788.17) and California Civil Code § 1788.14(c). These code sections, although similarly worded, have one distinct difference. Section 1692c(2) directs that: [A] debt collector may not communicate with a consumer in connection with the collection of any debt…if the debt collector knows the consumer is represented by an attorney with respect to such debt. Section 1788.14(c) states that: A debt collector shall not initiate communications, other than statements of account, when the debt collector has been previously notified in writing by the debtor’s attorney that the debtor is represented by such attorney with respect to the consumer debt[.] Cal. Civ. Code § 1788.14(c) (emphasis added). The former does not provide an exception for “statement of account” or billing statements. In a well-reasoned opinion, the Court in Marcotte v. General Elec. Capital Servs, Inc., 709 F. Supp. 2d 994 (S.D. Cal. 2010), discusses this anomaly and concludes ultimately that section 1692c, when it is applied via California Civil Code section 1788.17, should also provide an exception for billing statements. This Court adopts the reasoning and conclusion laid out in Marcotte and finds that a “statement of account” or billing statement sent to a represented debtor does not violate either section 1788.14(c) or section 1692c. In this case, Plaintiff alleges she retained an attorney to assist her in dealing with Ocwen’s debt collection who filed a Complaint and sent notice to Ocwen on April 6, 2015 that he was representing Plaintiff in connection with this debt. (SAC ¶ 146.) Despite this notice, Plaintiff alleges Ocwen sent a “collection notice correspondence” to her directly requesting that she begin paying Ocwen $4532.45 on April 27, 2016. (SAC ¶ 147.) Plaintiff also claims that on March 7, 2016, nearly a year after the lawsuit was originally filed, Ocwen sent her another “collection notice correspondence” instructing Plaintiff to pay Ocwen monthly mortgage payments of $4608.42 starting May 1, 2016. (SAC ¶ 156.) Ocwen requests that the Court take Judicial Notice of the “collection notice correspondence” and points out that this was simply the Escrow Analysis Results Ocwen was required to send under Title 12 U.S.C. § 2609(b). The Court agrees. The “collection notice correspondence” sent by Ocwen constitutes statutorily required “statements of account” and, for the reasons laid out in Marcotte, is not actionable under either section 1692c or 1788.14(c).