CEB Prac. Guide § 2A.16 -- Debts to which the FDCPA Apply - Definition of "Debt"

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In Paredes v. Credit Consulting Servs., No. H048092, 2022 Cal. App. Unpub. LEXIS 4848, at *28-31 (Aug. 8, 2022), the Court of Appeal affirmed denial of an anti-Slapp motion filed against a Rosenthal Act complainant suing over alleged misrepresentations made in a debt collection complaint.  First, the Court found that the Rosenthal Act cross-complaint was not barred by the statute… Read More

In Campbell v. Douglas Knights & Assocs., No. 21-cv-01667-JCS, 2021 U.S. Dist. LEXIS 84499, at *14-16 (N.D. Cal. May 3, 2021), Judge Spero dismissed and FDCPA because it did not arise from a "debt". Here, the letters attached to the Complaint indicates that Douglas, Knight & Associates is an insurance subrogation agent seeking to collect on behalf of an insurance… Read More

In Woodard v. O'Brien, No. 2:18-cv-1523, 2020 U.S. Dist. LEXIS 228608 (S.D. Ohio Dec. 4, 2020), Judge Marbley addressed the standards for an ID theft victim to prove an FDCPA claim. When determining if an individual is a "consumer" under the FDCPA, the typical inquiry is to ask whether the debt was for "personal, family, or household purposes." Martin v.… Read More

In Rogoff v. Nat'l Credit Sys., No. 2:19-cv-01131-APG-NJK, 2020 U.S. Dist. LEXIS 204753, at *7-8 (D. Nev. Nov. 2, 2020), Judge Gordon denied a motion for judgment on the pleadings to a debt collector collecting apartment rent. Viewing the facts alleged in the light most favorable to Rogoff, the complaint adequately alleges a false representation of the amount of the… Read More

In Calogero v. Shows, Cali & Walsh, L.L.P., No. 19-30558, 2020 U.S. App. LEXIS 26109 (5th Cir. Aug. 17, 2020), the Court of Appeals for the Fifth Circuit said that the US Government’s retention of private debt collectors to collect overpayment of compensation to victims of Hurricane Katrina arose out of a “transaction” under the FDCPA. When Congress passed the… Read More

In Lynaugh v. Vincent, No. CV-19-04643-PHX-DJH, 2020 U.S. Dist. LEXIS 23246 (D. Ariz. Feb. 10, 2020), Judge Humetewa found that attorneys’ fees awarded in an underlying consumer litigation was not a debt incurred on a consensual basis and, accordingly, did not arise from a “transaction” under the FDCPA. The Court will first examine Defendants' contention that the attorneys' fees judgment… Read More

In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More

In Rudio v. Credit Control, LLC, 2018 WL 4772303  (N.D.Cal., 2018), Judge Donato dismissed an FDCPA and Rosenthal Act claim. Credit essentially inverts Rudio’s claim to contend that the FDCPA does not apply to settled or expunged debts. The point is not well taken. The FDCPA defines “debt” to include an “alleged obligation of a consumer” to pay money, “whether… Read More

In Picazo v. Kimball, Tirey, & St. John, LLP, 2018 WL 1583228, at *5 (S.D.Cal., 2018), Judge Miller granted an Anti-SLAPP action filed by a debt collector in a Rosenthal Act claim arising from alleged misconduct in a state court UD action.  Judge Miller first found that the Rosenthal Act prevailed over the litigation privilege under the facts of the… Read More

In Mrvich v. Midland Funding, LLC, 2017 WL 5999058, at *2–4 (S.D.Cal., 2017), Magistrate Judge Porter denied production of an FDCPA Plaintiff's tax returns to test whether the debt was consumer or commercial in nature. Defendant moves to compel production of Plaintiff's federal and state income tax returns for the years 2010 to 2012, and her federal and state income… Read More

In Marius D. Popa v. Winn Law Group, APC, et al., 2017 WL 6016567, at *2 (C.D.Cal. 2017), Judge Fischer dismissed an FDCPA class action because of the absence of a "consumer" transaction. In the FAC's First, Second, and Third Causes of Action, Plaintiff alleges violation of Section 1692e(10) of the FDCPA, as incorporated into the Rosenthal Act, prohibiting “[t]he… 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 Mashiri v. Epsten Grinnell & Howell, 2017 WL 127565, at *4 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit weighed in on the split of authority amongst the circuit courts, finding that delinquent HOA assessments are "debts" under the FDCPA. The contents of the May Notice plainly belie Epsten's contention that it did not attempt to… Read More

In Munoz v. California Business Bureau, Inc., 2016 WL 6517655 (E.D. Cal. 2016), Magistrate Judge McAuliffe found that a debt subject to the Rosenthal Act did not lose its character because it was settled, nor did the settle end the debtor’s counsel’s representation so as to allow direct communication with the debtor by the debt collector’s counsel.  First, Judge McAuliffe… Read More

In In re Baroni, 2015 WL 6956664, at *12 (9th Cir.BAP (Cal.), 2015), the 9th Circuit BAP found that a debt secured by investment property was not an consumer "debt" under the FDCPA. As a second alternate theory for granting summary judgment against Allana on her FDCPA claim, the bankruptcy court held that the Carmel refinancing loan was not a… Read More

In Beauvoir v. Israel, 2015 WL 4429757 (2d Cir. 2015), the Court of Appeals for the Second Circuit limited the definition of "debt" under the FDCPA to consensual transactions. Although we have not previously had occasion to address whether money owed as a result of theft constitutes a “debt” for purposes of the FDCPA, several of our sister circuits have addressed… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2015 WL 3796123, at *1 (S.D.Cal.,2015), Judge Moskowitz found that a debt collector's collection of traffic fines from the wrong person were not protected by the litigation privilege, but were not subject to the Rosenthal Act. Defendant was assigned to collect several unpaid traffic fines by the San Diego County Superior Court assessed against Gilberto… Read More

In Mlnarik v. Smith, Gardner, Slusky, Lazer, Pohren & Rogers, LLP, 2014 WL 6657747 (N.D.Cal. 2014), Judge Freeman held that finds incurred for violating restrictive covenants in an HOA’s CC&Rs was neither a consentual transaction to constitute a “debt” under the FDCPA nor a “consumer credit transaction” under the Rosenthal Act.  Because the allegations in the FAC indicate that the… Read More

In Smith v. Hunt & Henriques, 2013 WL 6141416 (N.D.Cal. 2013), Judge Lloyd granted summary judgment to a debt collection law firm who properly validated a debt following a debtor’s demand for validation. H & H says that it is a law firm that collects outstanding financial obligations referred to it by its clients. (Dkt. 48–1, Hunt Decl. ¶ 2).… Read More

In Smith v. Progressive Financial Services, Inc., 2013 WL 3995004 (D.Or. 2013), Judge McShane found that a student loan taken out to attend an aviation academy was still a ‘consumer’ debt under the FDCPA. Contrary to defendant's argument, “education” encompasses something broader than mere investment in pursuit of profit.   Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347… Read More

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