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CEB Prac. Guide § 2A.34 -- Communications with the Debtor -- False or Misleading Representations

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Court of Appeal (Cal) Says in Unpublished Decision that “Knowledge” of Improper Service under 1788.15 Means “Constructive Knowledge”

by Scott J. Hyman |

In Minser v. Collect Access, Nos. B318325, B321996, 2023 Cal. App. Unpub. LEXIS 3029, at *13-18 (May 24, 2023), the Court of Appeal in an unpublished decision affirmed a judgment against a debt collector arising out of alleged improper service, holding that 1788.15's requirement that a debt collector "know" that service of process was not properly effected really means "constructive"… Read More

District Court (Cal.) Finds State Collection Laws Pre-empted by FCRA to the Extent Such Laws Impact Credit Reporting

by Scott J. Hyman |

In In re Wells Fargo Forbearance Litig., No. 20-cv-06009-JD, 2023 U.S. Dist. LEXIS 76443, at *17-18 (N.D. Cal. May 2, 2023), Judge Donato found that state collection laws are preempted by the FCRA if they impact on credit reporting. Wells Fargo says that plaintiffs' claims under state consumer protection laws are preempted by the FCRA. Dkt. No. 172 at 14.… Read More

District Court (N.C.) Finds No FDCPA Violation for Placing Calls Showing Local Area Code on Called Party’s Caller ID Rather than Location in Texas from Where Calls Were Actually Placed

by Scott J. Hyman |

In Brayton v. Alltran Fin., LP, No. 1:21-cv-309-MOC-WCM, 2023 U.S. Dist. LEXIS 72396, at *12-14 (W.D.N.C. Apr. 26, 2023), Judge Cogburn dismissed an FDCPA premised on an argument that calls showing the area code local to the debtor on the debtor's caller ID were deceptive. Plaintiff's claim under Section 1692e(10) is predicated on the theory that it was false or… Read More

Court of Appeal (Cal.) Affirms Anti-SLAPP Motion; Says Rosenthal Act Incorporates Federal FDCPA’s Materiality Standard and Should Be Interpreted Based on Current FDCPA Jurisprudence

by Scott J. Hyman |

In Aguilar v. Mandarich Law Grp., LLP, No. H049860, 2023 Cal. App. LEXIS 22 (Ct. App. Jan. 17, 2023), the California Court of Appeal found that the Rosenthal Act incorporated the federal FDCPA’s materiality standard, and affirmed an anti-SLAPP motion filed by a debt collector. Whether the nature of the relationship between OneMain Financial and OneMain Financial Issuance Trust is… Read More

Court of Appeal (Cal.) Says in Unpublished Sticker that Trial Court Erred in Granting Summary Judgment to Debt Collector Arising from Debt Collector’s Post-It Note Stapled to Pleadings

by Scott J. Hyman |

In Scott v. Credit Consulting Servs., No. H049063, 2022 Cal. App. Unpub. LEXIS 5210, at *21-24 (Aug. 23, 2022), the Court of Appeal in an unpublished decision reversed summary judgment granted by the trial court in favor of the debt collector. The misleading character of a covered communication is material if it could "cause the least sophisticated debtor to suffer… Read More

District Court (N.C.) Finds Evidentiary Dispute Regarding Whether Credit Report from CRAs is Sufficient to Demonstrate Furnisher’s 1692e(8) Obligation to Report Account as Disputed

by Scott J. Hyman |

In Richmond v. Medicredit, Inc., No. 5:21-CV-00068-KDB-DSC, 2022 U.S. Dist. LEXIS 130092, at *8 (W.D.N.C. July 22, 2022), Judge Bell denied an FDCPA defendant's summary judgment motion. The Court finds that there is a genuine issue of material fact as to whether Medicredit reported Richmond's debts as disputed to the credit reporting agencies ("CRAs"). The FDCPA protects consumers from certain… Read More

District Court (Cal.) Says Strike Two on FDCPA Plaintiff’s Contention that a Debt Collector Should Not Have Reported an Account as “Disputed” After the Debtor No Longer Disputed the Debt

by Scott J. Hyman |

We previously reported on this case here:  https://www.severson.com/consumer-finance/district-court-cal-finds-no-fdcpa-claim-based-on-reporting-account-as-disputed-when-debtor-did-not-dispute-the-debt/ Now, again, in Samano v. LVNV Funding, LLC, No. 1:21-cv-01692-SKO, 2022 U.S. Dist. LEXIS 114028, at *4-8 (E.D. Cal. June 27, 2022), Magistrate Oberta again granted a Motion to Dismiss, but again gave leave to amend, on whether credit reporting constituted debt collection activity. The purposes of the FDCPA are "to eliminate… Read More

CFPB Issues Advisory Opinion on “Pay-to-Pay” or “Convenience Fees”

by Erik W. Kemp |

On June 29, 2022, the CFPB issued an Advisory Opinion on collection of "convenience fees".  https://www.consumerfinance.gov/about-us/newsroom/cfpb-moves-to-reduce-junk-fees-charged-by-debt-collectors/  A copy of the Advisory Opinion can be found here. Severson has been following the CFPB's evolving position(s) and regulation of "convenience fees".   CFPB-2017-S&WConvenience-Fees-Bulletin; 2018-AmericanBarAssociation-Article-on-Convnience-Fees Referring to its 2017 Compliance Bulletin, the CFPB stated: For example, in 2017, the CFPB issued a compliance bulletin… Read More

6th Cir. Applies “Objectively Baseless” Standard to Ipso Facto Rule When Debt Collector Loses Prosecution of Action on the Debt

by Scott J. Hyman |

In Snyder v. Finley & Co., L.P.A., No. 21-3997, 2022 U.S. App. LEXIS 16512, at *1 (6th Cir. June 15, 2022), the Court of Appeals for the 6th Circuit explained how, and when, a debt collector can be found liable when losing litigation on the debt itself; i.e. does the debt collector ipso facto violate the FDCPA when it loses… Read More

6th Cir. Says Application for Garnishment to State Court Is a “”threat to take any action that cannot legally be taken” under 15 U.S.C. § 1692e(5), but Reverses So Debt Collector Can Explain the Factual and Legal Basis for the Application

by Scott J. Hyman |

In Thompson v. Renner, No. 21-1366, 2022 U.S. App. LEXIS 11706, at *10-12 (6th Cir. Apr. 28, 2022), the Court of Appeals for the 6th Circuit found that a garnishment application to a state court was a communication under under 15 U.S.C. § 1692e(5) But even without state-specific rules regarding affirmative representations, filing a garnishment request without reasonable belief that… Read More

District Court (Cal.) Finds No FDCPA Claim Based on Reporting Account as “Disputed” When Debtor Did Not Dispute the Debt

by Scott J. Hyman |

In a strange fact pattern, in Samano v. LVNV Funding, LLC, No. 1:21-cv-01692-SKO, 2022 U.S. Dist. LEXIS 72102, at *11-14 (E.D. Cal. Apr. 18, 2022), Magistrate Judge Oberto dismissed FDCPA claims derived from Plaintiff's complaint that the debt collector reported the Account as disputed when the Plaintiff previously had written to the debt collector to advise that he did not… Read More

9th Cir. Says “Fees” Under the FDCPA’s “Fees Authorized by Contract” Includes Paralegal Fees

by Scott J. Hyman |

In Almada v. Krieger Law Firm, A.P.C., No. 21-55275, 2022 U.S. App. LEXIS 1946, at *4-5 (9th Cir. Jan. 24, 2022), the Court of Appeals for the Ninth Circuit held that a dunning letter was not deceptive because "fees" claimed were "paralegal" fees. Almada argues that Kriger's assessment of the prelien fee violates the FDCPA because the fee was not… Read More

District Court (Cal.) Says “Pay-to-Pay” Fees Were Subject to the Rosenthal Act as “Due and Owing” Under the AG’s Opinion, But Did Not Violate the Act Because the Fees Were Permitted By Law and the Deed of Trust

by Scott J. Hyman |

In Mariscal v. Flagstar Bank, FSB, No. ED CV 19-2023-DMG (SHKx), 2021 U.S. Dist. LEXIS 171374, at *4-8 (C.D. Cal. Sep. 9, 2021), Judge Gee dismissed, a second time, the Plaintiff's Rosenthal Act Class Action challenging a mortgage company's "pay-to-pay" fees. The fee itself need not be a debt, as long as it is connected to the collection of a… Read More

District Court (Ala.) Says FDPCA Plaintiff States 1692e(8) Claim For Collector’s Failure to Report Subsequent Report as “Disputed”

by Scott J. Hyman |

In Canady v. Kaps & Co. (USA) Ltd. Liab. Co., No. 4:20-CV-1253-CLM, 2021 U.S. Dist. LEXIS 148878, at *7-9 (N.D. Ala. Aug. 9, 2021), Judge Maze found that an FDCPA Plaintiff stated a 1692e(8) claim. Kaps also argues that Canady's complaint fails to state a claim under § 1692e(8) because Canady alleges that she disputed the debt only after Kaps… Read More

District Court (Ill.) Outlines Obligations of Debt Collector Dealing with “Disputed” Consumer Reporting under FDCPA 1692e(8)

by Scott J. Hyman |

In Wood v. Sec. Credit Servs., LLC, No. 20-cv-02369, 2021 U.S. Dist. LEXIS 135926, at *5 (N.D. Ill. July 19, 2021), Judge Norgle denied summary judgment against a debt collector due to a question of fact regarding the debt collector's knowledge of a dispute regarding the reporting of the debt.  The District Court outlined the legal standards under 15 USC… 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

3rd Circuit Court of Appeals Upholds Summary Judgment Ruling In Favor of Law Firm and Holds Letter Inviting to Call “Eliminate Further Collection Action” Does Not Run Afoul of FDCPA

by Scott J. Hyman |

The 3rd Circuit upheld a summary judgment ruling that dismissed a putative class action against a law firm: Candace Moyer brought a putative class action against Patenaude  &  Felix,  A.P.C.  under  the  Fair  Debt  Collection Practices Act (“FDCPA”) after Patenaude sent her a collection letter inviting her to “eliminate further collection action” by calling  Patenaude.  Moyer  claimed  that  this  invitation … Read More

Court of Appeals for the Ninth Circuit Holds Plaintiff Need Not Prove Debt Collector Knew Debt Was Time-Barred When Collection Suit Filed, But Debt Collector Can Invoke Bona Fide Error Defense as to the Statute of Limitations

by Scott J. Hyman |

In Kaiser v. Cascade Capital, LLC, 2021 U.S. App. LEXIS 6754, the Ninth Circuit Court of Appeals reversed the ruling of the District Court for the District of Oregon that granted a motion to dismiss where the District Court reasoned the debt collector did not violate the FDCPA prohibitions on attempting to collect on a time barred debt because the… Read More

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