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CEB Prac. Guide § 2A.11 -- Persons to Whom the FDCPA Apply -- Federal -- Debt Assignees

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Court of Appeal (Cal.) Says Borrower Stated FDCPA Claim Against Mortgage Servicer Where Debt Already Was In Default at the Time of Assignment

by Scott J. Hyman |

In Randall v. Ditech Financial, LLC., 2018 WL 2355927, at *3 (Cal.App. 4 Dist., 2018), the California Court of Appeal found that an FDCPA Plaintiff stated a claim against a mortgage servicer who accepted assignment of a loan that already was in default. Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular… Read More

District Court (Tenn.) Says Auto Finance Company Not Subject to FDCPA Where It Introduced Evidence that Account Was Not In Default at the Time of Assignment

by Scott J. Hyman |

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

Uh, Thanks 11th Circuit, I Guess: 11th Cir. Confirms that FDCPA Does Not Apply to Debts Not In Default at the Time of the Assignment, But, Says Spokeo Provides Standing in FDCPA “Bad Letter” Case Because Debtor’s “Concrete Injury” Was Not Receiving FDCPA Disclosures

by Scott J. Hyman |

In Church v. Accretive Health, Inc., here, the Court of Appeals for the 11th Circuit held that collection on a debt that was not in default at the time of the assignment does not trigger the FDCPA. Thus, if the debt at issue was not in default at the time it was obtained by a third party agency, the agency’s… Read More

District Court (Ga.) Finds that Entity Acquiring Portfolio of Current and Defaulted Debt is Not Subject to FDCPA

by Scott J. Hyman |

In Davidson v. Capital One Bank (USA), N.A., 2014 WL 4071891 (N.D.Ga. 2014), Judge Duffey held that an entity that acquires a portfolio with both current and defaulted debt is not subject to the FDCPA as to those loans in the portfolio that were in default at the time of the purchase. Judge Duffey held that 15 USC 1692a(6)’s application… Read More

4th Cir. Distinguishes Between Delinquent Accounts and Accounts “in Default” at the time of Assignment under the FDCPA

by Scott J. Hyman |

In Fontell v. Hassett, --- Fed.Appx. ----, 2014 WL 2464987 (4th Cir. 2014), the Court of Appeals for the Fourth Circuit distinguished between “default” and mere “delinquency” in determining, under the FDCPA,  whether an account was “in default” at the time it was obtained. Excluded from the FDCPA's definition of debt collectors, see 15 U.S.C. § 1692a(6) is “any person… Read More

District Court (Miss.) Requires FDCPA Plaintiff to Plead Each Element of FDCPA Definition of “Debt Collector”

by Scott J. Hyman |

In Hambrick v. Wells Fargo Bank, N.A., 2009 WL 1532676 (N.D.Miss. 2009), Judge Pepper required a Plaintiff to plead each element of the definition of “debt collector”, denying the Plaintiff the right to conduct discovery in order to be able to plead one of the elements.  The issue involved whether, when Wells Fargo took assignment of the debt, the debt… Read More