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CEB Prac. Guide § 2A.14 -- Persons to Whom the FDCPA Apply -- California -- Comparison with Federal Act

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In Hagey v. Solar Serv. Experts, LLC, No. G061836, 2023 WL 5602365, at *3–4 (Cal. Ct. App. Aug. 30, 2023), the Court of Appeal held that a solar panel contract constituted a "consumer credit contract" under the Rosenthal FDCPA.  First, the Court of Appeal addressed the "due and owing" phrase in the Rosenthal Act's definition section. The question before us… Read More

In Olson v. La Jolla Neurological Assocs., No. D079265, 2022 Cal. App. LEXIS 973, at *16-20 (Ct. App. Nov. 23, 2022), the Court of Appeal held that a medical service provider, with no affiliation to its third party billing service, was not subject to the Rosenthal Act. Thus, the legal question before us is whether a medical service provider that… Read More

In Muzi Gao v. Campus 150 Venture II, LLC, No. SACV 20-01355 DDP (ADSx), 2022 U.S. Dist. LEXIS 18370, at *8-9 (C.D. Cal. Jan. 31, 2022), Judge Pregerson held that ancillary charges associated with residential rent may be a "consumer credit transaction" under the Rosenthal Act, even if the rent itself was not. The RFDCPA limits the ways in which… Read More

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 Hanrahan v. Statewide Collection, Inc., No. 19-cv-00157-MMC, 2020 U.S. Dist. LEXIS 242290 (N.D. Cal. Dec. 23, 2020), Judge Chesney granted partial summary judgment to a Rosenthal Act Plaintiff.  She held that the bond fide error rule can apply to mistakes of fact, but not where the mistake occurred with respect to a well-publicized error made by the debt collector.… Read More

In Denicolo v. Hertz Corp., No. 19-cv-00210-YGR, 2020 U.S. Dist. LEXIS 181248 (N.D. Cal. Sep. 30, 2020), Judge Rogers denied a debt collector’s MSJ arising out of a rental car contract  arising from a debtor’s business trip. In Chyba, defendant claimed that plaintiff had incurred damage to a rental vehicle and that summary judgment on the FDCPA claim should be… Read More

In Nagan v. Solutions, No. 19-C-170, 2020 U.S. Dist. LEXIS 155492 (E.D. Wis. Aug. 27, 2020), Judge Griesbach held that Wisconsin residents are not protected by California’s Rosenthal Act. The Rosenthal Act Plaintiff also asserts a claim under the Rosenthal Act, California's counterpart to the FDCPA that protects residents of California. Because Plaintiff was never a resident of California, the… Read More

In Elbert v. Roundpoint Mortg. Servicing Corp., No. 20-cv-00250-MMC, 2020 U.S. Dist. LEXIS 150341 (N.D. Cal. Aug. 19, 2020), Judge Chesney dismissed a Rosenthal Act claim because the account was not in delinquent. In Count II, Elbert asserts RoundPoint has violated the Rosenthal Act, which Act provides that "[n]o debt collector shall collect or attempt to collect a consumer debt… Read More

In Sanders v. LoanCare LLC, No. 18-CV-09376, 2019 U.S. Dist. LEXIS 20900, at *2-3 (C.D. Cal. Feb. 1, 2019), Judge Otero addressed, albeit in a mortgage situation, whether the collection of an online payment fee during a 10-day grace period triggered the Rosenthal Act.  The facts were as follows: In February 2018, Plaintiff received a Notice of Service Transfer ("Notice")… Read More

In Ames v. T-Mobile USA, Inc., 2018 WL 3417516, at *2 (S.D.Cal., 2018), the District Court dismissed a Rosenthal Act transaction due to the absence of a consumer credit transaction. T-Mobile argues that Plaintiff’s RFDCPA claim fails because Plaintiff does not allege a consumer debt. The existence of a consumer debt is a necessary element of Plaintiff’s RFDCPA claim. Cal.… Read More

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

In McMillion v. Rash Curtis & Associates, 2018 WL 692105, at *4 (N.D.Cal., 2018), Judge Rodgers found that a TCPA Defendant used an ATDS during the class period. The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and… Read More

In Kohler v. Greystar Real Estate Partners, LLC, 2017 WL 1198925, at *3 (S.D.Cal., 2017), Judge Houston dismissed a Rosenthal Act case because the Plaintiff had not pleaded that the Defendant collecting renting fell within its terms. This Court agrees with Defendant and finds that Plaintiff's claim fails to establish that Defendant was engaged in the collection of consumer debt.… Read More

In Farber v. JPMorgan Chase Bank N.A., 2014 WL 68380 (S.D.Cal. 2013), Judge Curiel found that mortgage servicers were subject to the Rosenthal Act, but found that only certain conduct might be actionable.  The facts were as follows: In September 2010, Farber sold the Property by way of a “short sale” with Defendant receiving approximately $1,139,345.00. (Id. ¶ 21.) In… Read More

In Santos v. LVNV funding, LLC, 2012 WL 3985527 (N.D.Cal. 2012), Judge Davila found that individual lawyers are exempt from the Rosenthal Act, but law firms are not. The parties point to a split in authority as to whether a law firm can be considered a “debt collector.” Plaintiff asserts that twelve of the fifteen district courts that have considered… Read More

In Ayvazian v. The Moore Law Group, et al, (Case No. 2:12-CV-01506-ODW) 2012 WL 2411181 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11) and Minasyan v. Creditors Financial Group, LLC, et al, (Case No. 2:12-CV-01864-ODW) 2012 WL 2328242 (C.D. Cal. 2012) (Order Granting Sanctions Pursuant to FRCP Rule 11), Judge Otis Wright held that neither a lawyer nor… Read More

Contrasting with Judge Nguyen's recent decision in Greenberg v. Hunt and Henriques, 2011 WL 4639833 (C.D.Cal. 2011), Judge Thurston in Moriarity v. Henriques, 2011 WL 4769270 (E.D.Cal. 2011) allowed an in pro per plaintiff to proceed against a debt collection law firm under the FDCPA and Rosenthal Act for filing and proceeding to default judgment in a state court collection… Read More

The Rosenthal Act’s definition of ‘debt collector’ specifically ‘does not include an attorney or counselor-at-law’.  (Cal. Civ. Code §1788.2(c)).  Decisions universally hold that individual attorneys are exempt from the Rosenthal Act.  (E.g. Lutge v Eskanos Adler, P.C. 2007 WL 1521551 (N.D. Cal. 2007). Cases split, however, on whether law firms enjoy the same exemption.      Cases finding law firms not… Read More

In De Dios v. International Realty & Investments, --- F.3d ----, 2011 WL 1346956 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit held that a residential property manager was not a “debt collector” within the meaning of the FDCPA because it did not acquire the debt when in default.  The facts were as follows:     In 2001,… Read More

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