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

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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