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CEB Prac. Guide § 2A.34B -- False or Misleading Representations (Legal Status of Debt or Charges)

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Court of Appeal (Cal.) Addresses Evidence Required to Prove Credit Card Debt; Rejects Rosenthal Act Claim; Says Contractual Attorneys’ Fee Clause Does Not Permit Recovery of Fees to Oppose Rosenthal Act

by Scott J. Hyman |

In Cavalry SPV I, LLC v. Watkins, No. D072299, 2019 Cal. App. LEXIS 603, at *12-15 (Ct. App. July 1, 2019), the California Court of Appeal addressed the evidence necessary to prove up a credit card debt in a debt collection action. Assuming without  deciding that California law applies, a party may accept a contract by conduct, as well as… Read More

District Court (Ill.) Denies Debt Collector’s MSJ Based on Call Pattern and Specifics of Conversations

by Scott J. Hyman |

In Brown v. I.C. Sys., No. 16 C 9784, 2019 U.S. Dist. LEXIS 45384 (N.D. Ill. Mar. 20, 2019), Judge Alonso denied a debt collector’s summary judgment motion, first finding that the call pattern created a question of fact. Defendant argues that its recordings of connected calls show that plaintiff never told defendant to stop calling; on the few occasions… Read More

District Court (Cal.) Addresses When “Delinquent” Debts Trigger the Rosenthal Act

by Scott J. Hyman |

In Sanders v. LoanCare LLC, No. 18-CV-09376, 2019 U.S. Dist. LEXIS 20900, at *2-3 (C.D. Cal. Feb. 1, 2019), Judge Otero addressed, albeit in a mortgage situation, whether the collection of an online payment fee during a 10-day grace period triggered the Rosenthal Act.  The facts were as follows: In February 2018, Plaintiff received a Notice of Service Transfer ("Notice")… Read More

District Court (Cal.) Says Judgment in Favor of Debtor in Debt Collection Action Does Not Preclude Debt Collector From Continuing to Collect by Non-Judicial Means

by Scott J. Hyman |

In Alarcon v. Vital Recovery Services, Inc., 2018 WL 6266558, at *4 (S.D.Cal., 2018), Judge Burns granted summary judgment under the FDCPA in favor of a debt collector who collected, by non-judicial means, on a debt that previously had been adjudicated in favor of the debtor. The question presented in this case is whether that ruling in favor of Alarcon in… Read More

8th Cir. Says Debt Collector’s Dunning Letter Cannot Compound Interest in Violation of State Law and the Contract

by Scott J. Hyman |

In Coyne v. Midland Funding LLC, 2018 WL 3423469, at *2–3 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit held that an FDCPA Plaintiff had pleaded a claim against a debt collector based on their claim that the debt collector's dunning letter had compounded interest in violation of state law and the contract forming the obligation. It is undisputed that Minnesota… Read More

9th Circuit Clarifies that While a Trustee Engaged in Non-Judicial Foreclosure is Not a Debt Collector, Attorneys Pursuing Judicial Foreclosure Were Debt Collectors

by Scott J. Hyman |

In McNair v. Maxwell & Morgan PC, 2018 WL 3097153 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit clarified when attorneys are engaged in debt collection under the FDCPA. Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency… Read More

3rd Cir. Says Letter Offering to “Settle” Time-Barred Debt Could Be Deceptive under the FDCPA

by Scott J. Hyman |

In Tatis v. Allied Interstate, LLC., 2018 WL 818004, at *3 (C.A.3 (N.J.), 2018), the Court of Appeals for the Third Circuit held that a letter that offered to "settle" a time-barred debt could be deceptive. Thus, Huertas stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so… Read More

District Court (Cal.) Denies Class Cert. in FDCPA “Speedpay” Case Brought Against Auto Finance Company

by Scott J. Hyman |

In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling. As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on… Read More

District Court (Cal.) Denies Auto Finance Company’s MSJ Because Factual Question Existed as to Whether its “SpeedPay” Program Violated the Rosenthal Act

by Scott J. Hyman |

In Lindblom v. Santander Consumer USA Inc., 2018 WL 500347, at *6–7 (E.D.Cal., 2018), Magistrate Judge McAuliffe denied an automobile finance company's summary judgment in a class action complaining that its SpeedPay program violated the Rosenthal Act. Defendant does not contend that the Speedpay fee is written or otherwise expressly authorized in the Contract. Rather, Defendant concedes that Contract is… Read More

9th Cir. Says Misstatement in Debt Collection Complaint was Material under FDCPA; Says Rosenthal Act Defenses Still Apply Despite Act’s Incorporation of FDCPA

by Scott J. Hyman |

In Afewerki v. Anaya Law Group, 2017 WL 3567829, at *4–5 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit held that a misstatement of the debt in a debt collection complaint was material. We agree and conclude that Anaya Law Group's $3,000 overstatement of the principal due in the state court complaint,2 exacerbated by the statement of an… Read More

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