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CEB Prac. Guide § 2A.09 -- Persons to Whom the FDCPA Apply -- Federal -- Attorneys May Be "Debt Collectors"

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In Felberbaum v. Mandarich Law Grp., LLP, No. 22-431-cv, 2023 U.S. App. LEXIS 3370, at *1-4 (2d Cir. Feb. 13, 2023), the Court of Appeals for the Second Circuit affirmed dismissal of an FDCPA claim based on allegations that the attorney did not have meaningful involvement in reviewing the debt. As relevant here, the FDCPA prohibits debt collectors from making… Read More

In Obduskey v. McCarthy & Holthus, LLP, the SCOTUS issued its opinion finding that a law firm engaged in non-judicial foreclosure was not a “debt collector” under the FDCPA.  We post below from the SCOTUS’ syllabus. Law firm McCarthy & Holthus LLP was hired to carry out a nonjudicial foreclosure on a Colorado home owned by petitioner Dennis Obdus- key. McCarthy sent… Read More

In Nitzkin v. Craig, 2018 WL 3074061 (Mich.App.), 3 (Mich.App., 2018), the Michigan Court of Appeals found that a creditor’s in-house counsel’s letters subjected the creditor to liability. With regard to the second and third requirements, the letter and Craig's deposition testimony make it clear that Guardian was collecting a debt owed to it while using the name of another.… Read More

In McNair v. Maxwell & Morgan PC, 2018 WL 3097153 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit clarified when attorneys are engaged in debt collection under the FDCPA. Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency… Read More

In Infante v. Law Office of Joseph Onwuteaka, 2018 WL 2438153 (5th Cir. 2018), the Court of Appeals for the Fifth Circuit found in an unpublished decision that Henson did not protect a lawyer claiming that he owned the debts that he’d purchased. On appeal, Onwuteaka claims that he deserves “creditor” status by proxy. His argument (though only barely more… Read More

In Berry v. Locke, 2018 WL 1958851, at *2–3 (Cal.App. 2 Dist., 2018), the Court of Appeal in an unpublished decision dismissed a Rosenthal Act class action arising from 3-day cure-or-quit notices served by a law firm in anticipation of litigation. A statement or writing made in a judicial proceeding is protected activity. (§ 425.16, subd. (e)(1)-(2).) Further, “ ‘communications… Read More

In Bird v. Real Time Resolutions, Inc., 2017 WL 661375, at *8 (N.D.Cal., 2017), Judge Davila dismissed claims against a creditor and the creditor's law firm arising under the FDCPA. Here, Mr. Reyes is an attorney at the law firm Ericksen Arbuthnot, which was retained as defense counsel for Real Time in the lawsuits filed by Plaintiff. Nowhere in the… Read More

In Consumer Financial Protection Bureau v. Frederick J. Hanna & Associates, P.C., Judge Totenberg rejected a debt collection law firm's constitutional challenge under the Noerr-Pennington doctrine and the equal protection doctrine to the CFPB's authority to bring claims against it.  As to the latter, the District Court found no equal protection violation for placing debt collection law firm's clients on different… Read More

On January 2, 2013 the Consumer Financial Protection Bureau (CFPB) starts its supervision of large debt collection firms that account for 63 percent of the market.  The CFPB announced Final Rule on Wednesday.  The CFPB will regulate 175 debt collection firms that each bring in more than $10 million in annual receipts.  See the live-blog entries from the CFPB's roundtable as to what… Read More

In Riley v. Giguiere, 2009 WL 1748721 (E.D.Cal. 2009),  Judge Karlton addressed whether an attorney involved in an unlawful detainer action was a ‘debt collector’ under the FDCPA.  Judge Karlton held that the attorney was ‘regularly’ engaged in debt collection, explaining:   Briefly, a debt collector includes anyone who “regularly collects or attempts to collect, directly or indirectly, debts owed… Read More