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CEB Prac. Guide § 2A.33 -- Communications with the Debtor -- Harassment, Abuse, and Threats

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District Court (Cal.) Says Unanswered Calls Do Not Violate the FDCPA

by Scott J. Hyman |

In Pearson v. April Healthcare Grp., 2021 U.S.Dist.LEXIS 90010 (S.D.Cal. 2021), Judge Hayes granted summary judgment to a debt collector attempting to collect a medical debt despite the availability of medical insurance. Denial of a plaintiff's motion for partial summary judgment as to the plaintiff's FDCPA claim is appropriate when "no mention of [the] plaintiff's debt was conveyed at any… Read More

8th Circuit Court of Appeals Holds No Ipso Facto Violation of the FDCPA Where the Debt Collector Fails to Meet Evidentiary Burden in Underlying Collection Action

by Scott J. Hyman |

In Smith v. Stewart, Zlimen & Jungers, Ltd. (8th Cir. 2021) 990 F.3d 640, the 8th Circuit Court of Appeals upheld the dismissal of consolidation actions under the FDCPA against the same debt collection law firm and declined to hold that a FDCPA claim is stated ipso facto because the debt collector lost the underlying collection action. In underlying collections actions… Read More

District Court (Cal.) Says Continuing Violation Doctrine Applies, Denies Summary Judgment for FDCPA Too-Many-Calls Case

by Scott J. Hyman |

In Hayward v. Bank of Am., N.A., No. 2:16-cv-03047-MCE-DMC, 2020 U.S. Dist. LEXIS 60318, at *19-25 (E.D. Cal. Apr. 6, 2020), Judge England denied summary judgment in a Rosenthal Act case. In support of her Second Claim, for violation of California's Rosenthal Act, Plaintiff alleges that [*20]  BANA made harassing calls to Plaintiff and in so doing used false and unconscionable… Read More

District Court (Cal.) Says Calls Did Not Constitute Harassment under the FDCPA

by Scott J. Hyman |

In Allen v. Credit Collection Servs., No. 2:18-cv-00929-MCE-KJN, 2020 U.S. Dist. LEXIS 27363 (E.D. Cal. Feb. 18, 2020), Judge Englund dismissed an FDCPA claim on the basis that the call number and pattern did not constitute harassment under the FDCPA. Plaintiff maintains that, despite CCS' call logs and telephone recordings of the two actual conversations its representatives had with Plaintiff… Read More

District Court (Ill.) Says FDCPA Plaintiff Can Unilaterally Claim that She Told Debt Collector to Stop Calling In Order to Defeat MSJ

by Scott J. Hyman |

In Kayyal v. Enhanced Recovery Co., No. 17 CV 2718, 2019 U.S. Dist. LEXIS 161475 (N.D. Ill. Sep. 23, 2019), the District Court denied summary judgment to a debt collector who as alleged to have harassed a wrong-number customer. Distilled to its essence, the parties disagree about whether ERC called Kayyal after being told it had the wrong number and… Read More

District Court (Cal.) Says Call-Volume FDCPA Case Better Left for the Jury

by Scott J. Hyman |

In Muzyka v. Rash Curtis & Assocs., No. 2:18-cv-01097 WBS, 2019 U.S. Dist. LEXIS 111795, at *12-14 (E.D. Cal. July 3, 2019), Judge Shubb denied summary judgment to a debt collector on a call-volume case. Defendant is correct that many district courts considering Section 1692d(5) claims have granted summary judgment for defendants where there is a high volume of calls… Read More

District Court (Cal.) Says Creditor Can Be Vicariously Liable for TCPA-Violating Calls Under Apparent Agency Theory; Says Unanswered Calls Can Violate the Rosenthal Act

by Scott J. Hyman |

In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More

District Court (N.J.) Finds Predictive Dialer Was Not an ATDS under the TCPA; Says Question of Fact, However, Whether Call Volume/Pattern Violated FDCPA

by Scott J. Hyman |

In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More

District Court (N.H.) Says Call Pattern and Volume Were Insufficient to Constitute FDCPA Harassment Claim

by Scott J. Hyman |

In Wenzel v. National Creditors Connection, Inc., 2018 WL 1902699, at *12 (D.N.H., 2018), Judge McCafferty granted summary judgment to a debt collector on a Plaintiff's FDCPA harassment claim. The evidence in the record shows that Carrington called Wenzel’s cell phone seven times between July 28 and October 11, 2016, and never more than once on a single day. There… Read More

District Court (Nev.) Follows ACA Int’l and Tosses TCPA Case; Says Part of FDCPA Harassment Claim May Proceed

by Rebecca Snavely Saelao |

In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More

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