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CEB Prac. Guide § 2A.17 -- Debts to which the FDCPA Apply -- Federal -- "Consumer" Requirement

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In Hall v. Phenix Investigations, Inc., 2016 WL 1238602, at *2-3 (5th Cir. 2016), a Law Firm hired private eyes to obtain information on a litigant in a commercial lease dispute, which the Law Firm used against the litigant in the litigation.  The litigant sued, alleging that the information obtained by the private eye was a "consumer report" under FCRA, and litigation… Read More

In Ordinario v. LVNV Funding, LLC, 2016 WL 852843, at *1-2 (S.D.Cal., 2016), Judge Burns denied summary judgment to an FDCPA plaintiff because he had failed to demonstrate that his allegedly personal debts were not commercial. The FDCPA and RFDCPA apply only to consumer debt, not business loans. See Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir.… Read More

In  Shular v. LVNV Funding LLC, 2016 WL 685177, at *9-10 (S.D.Tex., 2016), Judge Lake denied class certification for almost all reasons applicable to FRCP Rule 23, but one of which was the inability to determine commonality or who was in the class because of questions whether the debts were "personal" in nature.  The class action arose from Plaintiff's contention… Read More

In Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 2016 WL 536864, at *1-2 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit affirmed dismissal of a law firm's FDCPA complaint because the debt was commercial in nature. The FDCPA does not cover “actions arising out of commercial debts.” Goldman v. Cohen, 445 F.3d 152, 154 n.… 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 Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations.  Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More

In Roundtree v. Bush Ross, P.A., --- F.R.D. ----, 2014 WL 6969570 (M.D.Fla. 2015), Judge Whittemore found that an FDCPA class action could still be certified despite questions of whether the obligation was consumer or commercial merely by excluding commercial debts from the class definition.  The case arose from a purported “overshadowing” collection letter sent to collect delinquent condominium association… Read More

In Gold v. Midland Credit Management, Inc., --- F.Supp.3d ----, 2014 WL 5026270 (N.D.Cal. 2014), Judge Freeman rejected the argument that factual questions regarding whether financial transactions were primarily for consumer or business purposes could defeat class certification in an FDCPA case. Plaintiff owes a financial obligation, “namely a consumer credit account issued by HSBC Bank Nevada, N.A,” that was… Read More

Another Judge Karlton decision. In Davis v. Midland Funding, LLC, 2014 WL 3889971 (E.D.Cal. 2014), Judge Karlton held that it was permissible to ignore the FDCPA’s requirement that a debt arise out of a consumer transaction in situations of identity theft because, well, debt collectors are bad. The issue presented herein is whether a debt collector that attempts to collect… Read More

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