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

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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

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

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

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

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

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

In Elbert v. RoundPoint Mortg. Servicing Corp., No. 20-cv-00250-MMC, 2020 U.S. Dist. LEXIS 221611 (N.D. Cal. Nov. 25, 2020), Judge Chesney allowed a Rosenthal Act claim to proceed against a mortgage servicer based on charges assessed when the consumer made payments by telephone. As noted, a violation of the FDCPA constitutes a violation of the Rosenthal Act as well. See… Read More

In Lembeck v. Arvest Cent. Mortg. Co., No. 20-cv-03277-VC, 2020 U.S. Dist. LEXIS 205511, at *1-5 (N.D. Cal. Nov. 3, 2020), Judge Chhabria denied a mortgage servicer's FRCP 12(b)(6) motion regarding the propriety of the servicer's charging the Plaintiffs an IVR fee to make their mortgage payments. Valerie Lembeck alleges that her mortgage servicer, Arvest Central Mortgage Company, violates California… Read More

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