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CEB Prac. Guide § 2A.10 -- Persons to Whom the FDCPA Apply -- Federal -- Creditors not "Debt Collectors"

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In Wolfson v. Bank of Am., N.A., No. 20-35792, 2021 U.S. App. LEXIS 37864, at *2 (9th Cir. Dec. 21, 2021), the Court of Appeals affirmed dismissal of an FDCPA claim. The district court properly dismissed Wolfson's FDCPA claims because Wolfson failed to allege facts sufficient to show that defendant Bank of America, N.A., is considered a debt collector under… Read More

In Duncan v. Asset Recovery Specialists, Inc., Case No. 17-2598, 2018 WL 5623325 (7th Cir. Oct. 31, 2018), the Court of Appeals for the Seventh Circuit held that a repossession agency’s enforcement of an administrative fee did not trigger the FDPCA because it was not acting as the automobile finance company’s agent in doing so. The record on summary judgment… Read More

In Tepper v. Amos Financial, LLC, 2018 WL 3733862, at *6 (C.A.3 (Pa.), 2018), the Court of Appeals for the Third Circuit found that a debt buyer is still subject to the FDCPA post-Henson because the principal purpose was the collection of defaulted debt. Many would gladly pay Tuesday for a hamburger today. Of course, not all of those who… 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 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Law Office of Joseph Onwuteaka, 2018 WL 2438153 (5th Cir. 2018), the Court of Appeals for the Fifth Circuit found in an unpublished decision that Henson did not protect a lawyer claiming that he owned the debts that he’d purchased.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 Norman v. Allied Interstate, LLC, 2018 WL 2383099, at *2–3 (E.D.Pa., 2018), Judge McHugh held that a debt buyer remained subject to the FDCPA despite Henson.  Until recently, it was settled law in the Third Circuit that debt buyers like LVNV were debt collectors under the Act, because the debts they attempt to collect were in default when they… Read More

In Henderson v. Santander Consumer USA (S.Ct. No 16-349,) Justice Gorsuch authored the opinion holding that Santander's purchase of the CitiFinancial automobile portfolio did not render it a debt collector under the FDCPA.  Justice Gorsuch's folksy writing offered commentary and dicta that undoubtedly will create more litigation.  For example, in setting the stage for the issue to be decided, Justice Gorsuch… Read More

In Simpson v. American Credit Acceptance, LLC, 2017 WL 1968284, at *3–4 (E.D.Tenn., 2017), Judge Guyton granted summary judgment to an auto finance company under the FDPCA because the account was not in default at the time of the assignment. The Defendant asserts that it is not subject to the FDCPA because it is not a debt collector. Further, the… Read More

In Henson v. Santander Consumer USA, Inc., 2016 WL 1128419, at *1 (4th Cir. 2016), the Court of Appeals for the 4th Circuit affirmed dismissal of an FDCPA case against Santander Consumer USA, who had purchased CitiFinancial's defaulted post-repossession debt as part of a bundle of receivables. When arguing from the definition of creditor, they overlook the fact that the exclusion… Read More

In Parker v. Capital One Auto Finance, et. al. 2015 WL 7864182, at *2 (S.D.Ind., 2015), Judge Magnus-Stinson held that auto finance companies collecting their own debts were not subject to the FDCPA. The FDCPA . . .“applies only to ‘debt collectors' seeking satisfaction of ‘debts' from ‘consumers'; it does not apply to ‘creditors.’ ” McKinney v. Cadleway Properties, Inc., 548 F.3d 496,… Read More

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