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CEB Prac. Guide § 2A.28 -- Communications with the Debtor -- Cessation of Communications with the Debtor -- Notification that Consumer is Represented by Counsel

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In Gilbert v. TrueAccord, Case No. 21-cv-485, 2022 U.S. Dist. LEXIS 111328 (N.D. Ill. June 23, 2022), Judge Alonso granted partial summary judgment to a debt collector on the consumer's claim that the debt collector violated her lawyers C&D demand by e-mailing on a debt after the lawyer had advised of the lawyer's representation in connection with another debt. Furthermore, the… Read More

In Shafer v. Moore Law Grp., No. 3:20-cv-00525-MMD-CLB, 2021 U.S. Dist. LEXIS 174185, at *8 (D. Nev. Sep. 14, 2021), Judge Du allowed an FDCPA case to press forward against a debt collector who served a pleading directly on a represented party in an existing lawsuit because the party's lawyer had not formally entered an appearance. Plaintiff alleges that, despite… Read More

In Swartzlander v. Capital Mgmt. Servs., LP, No. 19cv580-WQH-BGS, 2019 U.S. Dist. LEXIS 127053, at *3-9 (S.D. Cal. July 30, 2019), Judge Hayes dismissed an FDCPA Plaintiff's claimed premised on collection letters sent to her counsel. Defendant contends that communications to a consumer's attorney are not actionable under the FDCPA, as determined by the Court of Appeals in the controlling case… Read More

In Gebhardt v. LJ Ross Associates, Inc., 2017 WL 2562106, at *2–3 (D.N.J., 2017), Judge Cooper granted summary judgment for a debt collector who called the debtor after "receiving" a notice of representation letter from the debtor's counsel. The sole contention between the parties, and the only question for us to resolve with this count, is whether Defendant had the… Read More

In Ruvalcaba v. Ocwen Loan Servicing, LLC, 2016 WL 7178855 (S.D. Cal. 2016), the Court held that billing statements were permitted to be sent to a debtor despite being represented by counsel. Plaintiff alleges that Ocwen violated both 15 U.S.C. § 1692c (incorporated by reference in the California FDCPA by California Civil Code § 1788.17) and California Civil Code §… 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 Vilinsky v. Phelan Hallinan & Diamond, PC, 2016 WL 805970, at *2 (C.A.3 (N.J.),2016), the Court of Appeals for the Third Circuit found that a notice of assignment sent directly to a represented debtor did not violate the FDCPA because it was not in connection with the collection of the debt. The issue in this case is whether a… Read More

In Camacho v. Jefferson Capital Sys., LLC, 2015 WL 3454070, at *3-4 (N.D. Cal. 2015), Judge Freeman rejected a debt collector's contention that the words used by the debtor's counsel did not convey that the debtor was represented by counsel. Under both the FDCPA and Rosenthal Act, a debt collector may not directly communicate with an individual debtor in connection… Read More

In Alvarado v. Credit Protection Association, L.P., 2015 WL 859109 (M.D.Fla. 2015), Judge Covington rejected the argument made by a TCPA defendant that a “Notice of Representation” from Plaintiff’s counsel was inadmissible as a confidential settlement communication because the letter was relevant to cease-and-desist under the FDCPA and revocation of consent under the TCPA. Although the September Letter contains language… Read More

In Istre v. Miramed Revenue Group, LLC, 2014 WL 4988201 (E.D.Mo. 2014), Judge Barton held that when a debtor tells the debt collector that she is represented by counsel, the debt collector has to stop the call. The facts were as follows: According to plaintiff's factual allegations, the following occurred. Plaintiff, a “consumer” for pur-poses of the FDCPA, resides in… Read More

In Taufen v. Messerli & Kramer, P.A., 2014 WL 668019 (D.Minn. 2014), Judge Frank held that an FDCPA plaintiff seeking to prove that a “Notice of Representation” was violated under 15 U.S.C. § 1692c(a)(2) must prove both that a Notice of Representation was given and that the attorney’s name was reasonably ascertainable. Even if the Court were to conclude that… Read More

In Hockenhull v. Law Office Howard Lee Schiff, P.C.  2012 WL 6525504 (D.R.I. 2012), Judge Smith rejected a debt collector's contention that he could ignore a Notice of Representation simply because the attorney is issued the NoR was not admitted to practice in Rhode Island.  Judge Smith explained: In response to Count I, that Defendants violated 15 U.S.C. § 1692c(a)(2) by… Read More

In McEndree v. Rash Curtis & Associates, 2012 WL 3028010 (E.D.Cal. 2012), Judge England held that violation of a cease-and-desist exists even if the debtor never answers the telephone call that forms the basis for the cease and desist.  Judge England explained: Rash Curtis advances two arguments in support of its futility argument. First, it argues that because Plaintiff did… Read More

In Salazar v. MFP, Inc., --- F.Supp.2d ----, 2012 WL 762494 (M.D.Fla. 2012), Judge Hernandez-Covington held that a debt collector violated the FDCPA by honoring a cease-and-desist letter on one account but continuing to pursue another account. Plaintiff asserts that Defendant violated this provision by sending her a collection letter on August 31, 2010, after she had sent her cease… Read More

In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez.  As to the claim under the ASFA, Judge Sabraw held:   Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information… Read More

In Day v. American Home Servicing, Inc. 2010 WL 2231988 (E.D.Cal. 2010), Judge Burrell held that a consumer stated a Rosenthal Act claim under the Iqbal/Twombly pleading standard for communicating with a represented party notwithstanding the fact that notice was not given in writing.  Judge Burrell explained:   Since the Rosenthal Act incorporates violations of the federal Fair Debt Collection… Read More

In Marcotte v. General Electric Capital Services, Inc., 2010 WL 1573680 (S.D.Cal. 2010), Judge Moskowitz held that the Rosenthal Act did not prohibit a credit card company from sending billing statements notwithstanding notice from the debtor’s counsel that the debtor was represented.    Judge Moskowitz summarized:   In summary, the Court concludes that billing statements are exempted under § 1788.17… Read More

In Offril v. J.C.Penney, Inc., 2009 WL 69344 (N.D.Cal. 2009), Judge Hamilton held that notice by a consumer to a creditor that it was represented by counsel did not, for purposes of the FDCPA, constitute notice to the collection agency hired by the creditor to collect the debt.  Judge Hamilton explained:  Although plaintiff did not allege or argue that JC Penny's actual knowledge of… Read More

In Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), Judge Zimmerman gave guidance on what constitutes a permissible "statement of account" which may be sent to consumers notwithstanding notice that the consumer is represented by counsel.  Civil Code §1788.14(c) prohibits a debt collector from initiating communications with the debtor about a consumer debt, other than to provide a statement… Read More