Effective, Experienced, Exceptional.

Firm Profile

CEB Prac. Guide § 2A.07 -- Statutory Background and Pre-emption -- California's Partial Adoption of the Federal FDCPA

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

District Court (Cal.) Says Rosenthal Act’s Embedded Federal Claim Does Not Confer Federal Jurisdiction

by Scott J. Hyman |

In Dollaga v. Specialized Loan Servicing Llc, No. 20-cv-07472-JSC, 2020 U.S. Dist. LEXIS 233610 (N.D. Cal. Dec. 11, 2020), Magistrate Judge Corley remanded a Rosenthal Act claim for wont of federal question jurisdiction. Plaintiff's complaint seeks damages and injunctive relief for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference… Read More

District Court (Cal.) Says Embedded FDCPA Claim in Rosenthal Act Does Not Confer Federal Question Jurisdiction

by Scott J. Hyman |

In Greene v. Fay Servicing, LLC, No. 19-cv-01073-JSC, 2019 U.S. Dist. LEXIS 68107, at *7-9 (N.D. Cal. Apr. 22, 2019), Judge Green remanded a Rosenthal Act claim for absence of federal jurisdiction. Defendants' notice of removal asserts that federal jurisdiction exists because the second cause [*8]  of action under the RFDCPA references violations of the Fair Debt Collections Practices Act ("FDCPA"),… Read More

District Court (Cal.) Says Rosenthal Act’s Embedded FDCPA Claim Does Not Confer Federal Question Jurisdiction

by Scott J. Hyman |

In Jenkins v. Bayview Loan Servicing, LLC, 2018 WL 5255318, at *3 (C.D.Cal., 2018), Judge Olguin remanded a Rosenthal Act claim due to the absence of federal jurisdiction. Bayview contends that federal question jurisdiction exists because the Complaint refers to the FDCPA. (See Dkt. 1, NOR at 3). However, the Complaint asserts only state-law claims, including California’s Rosenthal Fair Debt… Read More

District Court (Cal.) Says Rosenthal Act’s Incorporation of Federal FDCPA Does Not Confer Federal Question Jurisdiction

by Scott J. Hyman |

In Ghalehtak v. Fay Servicing, LLC,  2018 WL 2553570, at *2 (N.D.Cal., 2018), Judge Hamilton remanded a Rosenthal Act claim back to state court. Defendants argue that federal jurisdiction exists under § 1331 because plaintiffs’ RFDCPA claim specifically references parts of the FDCPA. Under the “well-pleaded complaint rule...federal jurisdiction exists only when a federal question is presented on the face… Read More

Court of Appeal (Cal.) Says Rosenthal Act Covers Mortgage Servicer

by Scott J. Hyman |

In Davidson v. Seterus, Inc., 2018 WL 1281873, at *7–10 (Cal.App. 4 Dist., 2018), the Court of Appeal found that a mortgage servicer was subject to the Rosenthal Act. Although the defendants concede that “secured debt could still be a 'consumer debt,' “ they nevertheless argue that this “does not mean a mortgage debt is a consumer debt.” The defendants… Read More

9th Cir. Says Misstatement in Debt Collection Complaint was Material under FDCPA; Says Rosenthal Act Defenses Still Apply Despite Act’s Incorporation of FDCPA

by Scott J. Hyman |

In Afewerki v. Anaya Law Group, 2017 WL 3567829, at *4–5 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit held that a misstatement of the debt in a debt collection complaint was material. We agree and conclude that Anaya Law Group's $3,000 overstatement of the principal due in the state court complaint,2 exacerbated by the statement of an… Read More

District Court (Cal.) Strikes Rosenthal Act Affirmative Defenses; Says Rosenthal Act Class Penalty Not Pre-empted by FDCPA and Bona-fide Error Defense Must Meet FRCP Pleading Standards

by Scott J. Hyman |

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

District Court (Cal.) Says Rosenthal Act’s Incorporation of Federal FDCPA Does Not Confer Federal Jurisdiction

by Scott J. Hyman |

In Wright v. Saxon Mortgage Services, Inc., 2011 WL 500798 (N.D.Cal. 2011), Judge Armstrong held that the Rosenthal Act's incorporation of federal law did not confer federal question jurisdiction, explaining: Even assuming that Plaintiff's sixth cause of action incorporates provisions of the FDCPA, relevant authority provides that federal question jurisdiction cannot be premised on that basis. See Ortega v. HomEq… Read More