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CEB Prac. Guide § 2A.13 -- Persons to Whom the FDCPA Apply -- Federal -- Other Excluded Persons

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In Best v. Ocwen Loan Servicing (May 21, 2021) ___Cal.App.5th___ [2021 Cal. App. LEXIS 423] the court rejected arguments by a mortgage loan servicer and beneficiary that the Rosenthal Fair Debt Collection Pracitices Act did not apply to non-judicial foreclosures, relying on Obduskey v. McCarthy & Holthus LLP (2019) 139 S.Ct. 1029 and Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th… Read More

In Willison v. Nelnet, Inc., No. 20-3538, 2021 U.S. App. LEXIS 8921 (6th Cir. Mar. 25, 2021), the Court of Appeals for the 6th Circuit found that a student loan rehabilitation company was not subject to the FDCPA. Uncontradicted evidence clearly shows that Nelnet obtained Willison's loans for servicing after they were no longer in default. Willison participated in the… Read More

In McAdory v. DNF Associates, LLC (9th Cir. 2020), the Court of Appeals for the 9th Circuit followed the Third Circuit’s decision in Barbato v. Greystone All., LLC (3d Cir. 2019) 916 F.3d 260, to find that a company whose principal business activity is buying defaulted debts from creditors is a "debt collector" for purposes of the FDCPA even if… 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 Barbato v. Greystone All., No. 18-1042, 2019 U.S. App. LEXIS 5336 (3d Cir. Feb. 22, 2019), the Court of Appeals for the Third Circuit imposed vicarious FDCPA liability on a debt buyer who outsourced its debt collection activities.  The appeal is concerned whether an entity that acquires debt for the "purpose of . . . collection" but outsources the… 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 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 Skinner v. LVNV Funding, LLC., 2018 WL 319320, at *4 (N.D.Ill., 2018), Judge Aspen found that an FDCPA Plaintiff failed to make an evidentiary record that the Defendant's principal purpose was the collection of debts, post-Henson. The record lacks any evidence establishing the primary purpose of Defendant's business, debt collection or otherwise. Plaintiff presents a list of hundreds of collection… Read More

In Brooks v. Leon’s Quality Adjusters, Inc., 2016 WL 4539967 (E.D. Cal. 2016), Judge Thurston granted summary judgment to a repossession company under the FDCPA and Rosenthal Act. Moreover, courts have determined repossession companies, such as Leon’s Quality Adjusters, are not generally “debt collectors” subject to liability under the FDCPA. See, e.g., Montgomery v. Huntington Bank, 346 F.3d 693, 699… Read More

In Vantu v. Echo Recovery, L.L.C., --- F.Supp.3d ----, 2015 WL 571102 (N.D.Ohio 2015), Judge Carr found a repossession loses its exemption under the FDCPA when it violates state law. In any event, the fact that Echo's principal business is not debt collection would not save it from liability under the FDCPA. That is so, because Vantu has plausibly alleged Echo is… Read More

In Fonteno v. Wells Fargo Bank, N.A., --- Cal.Rptr.3d ----, 2014 WL 4058867 (Cal.App. 1 Dist. 2014), the California Court of Appeal held that a person engaging only in activities leading towards a foreclosure sale is not a “debt collector” under the FDCPA. Plaintiffs' “debt collector” contentions rest on their theory that “First American's principal business IS debt collection by… Read More

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

In Gorman v. JP Morgan Chase Bank, 2013 WL 1882303 (S.D.Cal. 2013), Judge Anello addressed a Plaintiff’s FDCPA claims against his automobile finance company and the repossession company it hired.  Judge Anello found that JP Morgan-Chase was not a debt collector because, as an auto finance company, it was the original creditor. Defendant JP Morgan argues that the FDCPA does… Read More

In Esquivel v. Bank of America, N.A., 2013 WL 682925 (E.D.Cal. 2013), Judge Burrell found that a company that obtained defaulted debt through merger and acquisition rather than by debt purchase did not ‘obtain’ the debt while the debt was in default for purposes of triggering the FDCPA. The FDCPA explicitly states certain persons are not considered “debt collectors” including:… Read More

In Pfeifer v. Countrywide Home Loans et al., --- Cal.Rptr.3d ----, 2012 WL 6216039 (2012), the Court of Appeal for the First District found a trustee’s action in a non-judicial foreclosure to be exempt from the FDCPA, rejected arguments apparently advocated by the CFPB in other cases. Allen Pfeifer (Allen) and Florence A. Pfeifer (Florence), a son and his mother… Read More

In  Mkhitaryan v. U.S. Bancorp, 2012 WL 6204840 (D.Nev. 2012), Judge Mahan refused to grant a Plaintiff’s summary judgment motion based on the claim that a repossession agent violated the FDCPA and ‘breached the peace’ during the course of a repossession.  As to the FDCPA, Judge Mahan found it inapplicable.   The purpose of the FDCPA includes, among other things,… Read More

In Roberts v. NRA Group, LLC, 2012 WL 3334488 (M.D.Pa. 2012), Judge Caputo distinguished between delinquent debts and debts in “default” for purposes of triggering the FDCPA.  Judge Caputo granted summary judgment to a debt collector on the basis that a delinquent hospital debt assigned to it was not “in default” at the time of the assignment. Here, Defendant's motion… Read More

In Smith v. Capital One Financial Corp.  2012 WL 1669347 (N.D.Cal. 2012), Judge Hamilton held that an FDCPA claim and common law invasion of privacy claim would not lie against a credit card company collecting its own obligations. However, a company that extends a consumer credit line (e.g., a credit card company) is in the business of extending credit, not the… Read More

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