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

In Rodrigo v. Barclays Bank Delaware, 2017 WL 1155373, at *4–5 (S.D.Cal., 2017), Judge Houston dismissed an FDCPA case grounded in allegedly suing on a stale debt and filing a false proof of service in the underlying action. Construing all inferences in the light most favorable to Plaintiff, the Court finds that the state law collection action brought against Rodrigo… Read More

In Pantoja v. Portfolio Recovery Associates, LLC, 2017 WL 1160902, at *3–7 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that a debt purchaser's letter collecting on 20-year old debt violated the FDCPA. We start with law that we believe is settled. First, a debt collector violates the Act by suing to collect a consumer debt… Read More

In Verdun v. Fidelity Creditor Service, Inc., 2017 WL 1047109 (S.D. Cal. 2017), Magistrate Judge Bartick granted partial summary judgment to a debt collector that its letter was not misleading under the FDCPA or Rosenthal Act. Here, Defendant included in its letter to Plaintiff a sentence summarizing section 1788.21 of the California Civil Code. The sentence read, "The Rosenthal Act, California Civil Code… Read More

In Lauren Cummings v. Jaburg & Wilk, P.C., 2017 WL 977574, at *4–5 (D.Ariz., 2017), the District Court granted summary judgment under the FDCPA because the misstatement of the debt was not material under 9th Circuit precedent. The Court finds that Ninth Circuit precedent controls the facts of this case in favor of Defendant. Under the FDCPA, § 1692e prohibits… Read More

In Lyudmila Maronyan v. Financial Credit Network Inc., 2017 WL 57835, at *3 (C.D.Cal., 2017), Judge Wilson allowed an FDCPA claim to proceed based on pleadings in the state court collection action. FCN's statements regarding its entitlement to attorneys' fees in the state court complaint may in fact be misleading to the least sophisticated debtor. Although one part of FCN's… Read More

In Horowitz v. GC Services Limited Partnership, 2016 WL 7188238, at *9 (S.D.Cal. 2016), Judge Anello granted summary to an FDCPA plaintiff as to voicemail messages left that failed to give meaningful disclosure. However, it does not follow that Defendant had to either leave a voicemail lacking the disclosures required by section 1692d(6) or leave a voicemail that violates section… Read More

In Miran v. Convergent Outsourcing Inc., 2016 WL 7210382, at *5 (S.D.Cal., 2016), Judge Battaglia found that a debt collector's offer letter on an out-of-statute debt did not violate the FDCPA because it was neither deceptive nor threatened to sue. Finding that the issue of novation is a factual question undeterminable by the evidence presented by Plaintiff, the Court looks… Read More

In Deaguero v. Mountain Lion Acquisitions, Inc., 2016 WL 7030364 (2016), the California Court of Appeal in an unpublished decision found that the CFL does not prohibit the sale of debt to an unlicensed entity. Deaguero's claims depend upon his construction of section 22340, subdivision (a). Specifically, his claim that Mountain Lion violated the FDCPA and RFDCPA is based on the… Read More

In Daugherty v. Convergent Outsourcing, Incorporated, 2016 WL 4709712 (C.A.5 (Tex.), 2016), the Court of Appeals for the Fifth Circuit allowed an FDCPA claim to proceed based on a collection letter for a time-barred debt, even where no litigation is falsely threatened. There is an apparent conflict in the circuits as to whether a collection letter offering “settlement” of a… Read More

In Marquez v. Weinstein, Pinson & Riley, P.S., 2016 WL 4651403, at *4 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit found a debt collection law firm's complaint deceptive. Paragraph 12 is misleading to the unsophisticated consumer both as to the proper timing to respond to the complaint and as to the manner of response. A plain reading… Read More

In Gomez v. Oxford Law, LLC,  2016 WL 4174321, at *2–3 (3rd Cir. 2016), the Court of Appeals for the Third Circuit held that a TCPA violation did not automatically constitute an FDCPA violation. Specifically, Gomez argues that Oxford Law violated this provision not by making a threat to take any action that cannot legally be taken, but rather by actually taking… Read More

In Owen v. LNV Funding, LLC, 2016 WL 4207965, at *3 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit found nothing inherently deceptive about filing stale proofs of claims in bankruptcy court. Thus, the Bankruptcy Code contemplates that creditors will file proofs of claim for unenforceable debts—including stale debts—and that the bankruptcy court will disallow those claims upon the… Read More

In Nelson v. Midland Credit Management, Inc., 2016 WL 3672073, at *2 (8th Cir. 2016), the Court of Appeals for the Eight Circuit disagreed with the 11th Circuit's Crawford decision on the actionability under the FDCPA of filing time-barred proofs of claim. Nelson urges this court to follow the Eleventh Circuit and extend to bankruptcy claims the rule against actual… Read More

In Campbell v. American Recovery Services Incorporated, 2016 WL 3219866, at *3 (C.D.Cal., 2016), Judge Wright dismissed an FDCPA grounded in the contention that a collection letter failed to adequately identify the creditor. Section 1692g(a) of the FDCPA provides that within five days after the initial communication with a consumer in connection with the collection of any debt, a debt… Read More

In St. John v. Cach, LLC, 2016 WL 2909195, at *2-3 (C.A.7 (Ill.),2016), the Court of Appeals for the Seventh Circuit held that a debt collector who files lawsuits hoping for settlement or default judgment does not violate the FDCPA by dismissing contested actions. The plaintiffs' principal argument on appeal is both novel and straightforward. They begin by asserting that… Read More

In Foster v. Allianceone Receivables Management, Inc., 2016 WL 1719824, at *2 (N.D.Ill., 2016), Judge Farrah denied a motion to dismiss by a debt collector who referenced IRS charge-off rules for compromised debt.  Plaintiff incurred a debt from Capital One Bank (USA).   Defendant sent Plaintiff a single collection letter on or about March 9, 2015, advising that its client, Capital… Read More

In Janetos v. Fulton Friedman & Gullace, LLP, 2016 WL 1382174, at *4-5 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit held that a debt collection law firm failed to clearly identify the creditor in its debt collection validation letter and, accordingly, the Plaintiff need not demonstrate materiality by extrinsic evidence. It is true that for claims… Read More

In Bedrosian v. State Collection Service, Inc., 2016 WL 743390, at *2-3 (E.D.Mo., 2016), Judge White dismissed an FDCPA Plaintiff's claim, saying that simply responding to the Plaintiff's questions about the possibilities of what could happen if the Plaintiff did not pay her debt did not constitute an illegal threat. Defendant contends that Plaintiff fails to state a claim under Section… Read More

In Prescott v. Seterus, Inc., 2015 WL 7769235, at *3-4 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit held that a reinstatement letter that required the debtor to pay estimated future attorneys' fees as a condition of reinstatement violated the FDCPA because the demand was inconsistent with the security agreement. The security agreement does obligate Prescott to pay… Read More

In Beider v. Retrieval Masters Creditors Bureau, Inc., 2015 WL 7454119 (E.D.N.Y., 2015), Judge Hurley dismissed an FDCPA claim grounded in Plaintiff's claim that the Defendant debt collector did not collect in its "true name" because it collected in a licensed "DBA", the name of which suggested specialization in collection of the type of debts owed. Plaintiff claims that defendant… Read More