CEB Prac. Guide § 2A.35 -- Communications with the Debtor -- Unfair Practices

In  Midland Funding, LLC v. Johnson, the SCOTUS held that allowing bankrupt debtors to invoke the FDCPA would upset a “delicate balance” and “authorize a new significant bankruptcy-related remedy in the absence of language in the [Bankruptcy] Code providing for it.”  Instead, barring debt collectors from filing stale claims would require creditors to investigate the merits of affirmative defenses. “The upshot… 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In Deaguero v. Mountain Lion Acquisitions, Inc., 2016 WL 7030364 (2016), the California Court of Appeal in an unpublished decision found that the CFL does not prohibit the sale of debt to an unlicensed entity.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

The Conference on Consumer Finance Law just published two articles on the FDCPA by Severson & Werson. Hyman & Kenney, Judicial Isolation of the Third Circuit’s “Glassine Window” FDCPA Decision in Douglass v. Convergent Outsourcing, 69 Conf. Cons. Fin. L. Q. 142 (Fall 2016):  here  Hyman & Kenney, The Effect of the FDCPA’s Class-Action Penalty Cap on Class Certification, 69… Read More

In Anenkova v. Van Ru Credit Corporation, 2016 WL 4379296, at *5–7 (E.D.Pa., 2016), Judge Savage recognized that he was bound by Douglass, but nevertheless recognized a benign language exception and found that a debt collector's disclosure of a bar code did not violate the FDCPA. Having recognized a benign language exception, we turn to whether the exception applies to… Read More

In Jackson v. Blitt & Gaines, P.C., 2016 WL 4376514, at *1 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit held that garnishment proceedings are not subject to the FDCPA's venue provisions. At issue in this appeal is whether a wage-garnishment action under Illinois law is a “legal action” on a debt against a consumer under the… Read More

In Johnson-Morris v. Santander Consumer USA, Inc., 2016 WL 3671468, at *5-6 (N.D.Ill., 2016), Judge Kocoras denied an auto finance company's motion to dismiss a Plaintiff's FDCPA class action alleging that the Company kept a portion of "convenience fees" that were paid to pay-by-phone vendor.  The Plaintiff alleged: Western Union allegedly “kept a portion of the fees paid by Plaintiff… Read More

In Garcia v. CreditorS Specialty Service, Inc., 2016 WL 3345459, at *1 (N.D.Cal., 2016), Judge Freeman allowed a glassine window case to proceed past the pleadings stage. Visible on the face of the envelope was Defendant CSS's name, its return address, and a “large red dollar sign logo,” id. at ¶ 21; Exh. 1 to SAC at 2, ECF 74-1,… Read More

In Datta v. Asset Recovery Solutions, LLC, 2016 WL 3163142, at *5-10 (N.D.Cal., 2016), Judge Koh granted summary judgment to a debt collector who was sued under the Third Circuit's glassine window theory in Douglass.   Notably, district courts in both the Central and Southern Districts of California have adopted the benign language exception. In Masuda v. Thomas Richards & Co.,… Read More

 In Lindblom v. Santander Consumer USA, Inc., 2016 WL 2625925, at *3-7 (E.D.Cal., 2016), Chief Judge O'Neill allowed Plaintiff's Rosenthal Act claim to proceed past the pleading stage.Plaintiff made payments on the loan by phone and online through Western Union's “Speedpay” service. To do so, Plaintiff was required to pay a fee to Western Union.   Plaintiff alleges Western Union then remitted… Read More

In Bishop v. Ross Earle & Bonan, P.A., 2016 WL 1169064, at *3 (11th Cir. 2016), the Court of Appeals for the 11th Circuit held that communications between a debt collector and debtor's counsel counsel are subject to the FDCPA, but still are subject to the least sophisticated consumer standard. We join the Third, Fourth, and Seventh Circuits in holding that… Read More

In Gallego v. Northland Group Inc., 2016 WL 697383, at *3-4 (C.A.2 (N.Y.),2016), the Court of Appeals was called on to review the District Court's denial of class certification in an FDCPA class action.  The Court of Appeals first expounded on whether there was a substantial federal question, because the FDCPA claim was grounded in a violation of state law --… Read More

In Kostik v. ARS National Services, Inc., 2016 WL 69904, at *2-4 (M.D.Pa. 2016), Judge Nealon declined to certify a Douglass-type FDPCA case for interlocutory review, believing that there is no substantial grounds for a difference of opinion. Defendant claims that there are substantial grounds for difference of opinion as to whether the disclosure of a barcode allegedly embedded with plaintiff's… Read More

In Berry v. ARS National Services, Inc., 2015 WL 9315993, at *3 (E.D.Pa., 2015), Judge Restrepo extended the Douglass decision beyond account numbers to include barcodes being visible on dunning letter envelopes as well. Initially, it is noted that in Douglass, the Third Circuit held that “§ 1692f(8)'s prohibition on language and symbols applies to markings that are visible through a transparent… Read More

In Palmer v. Credit Collection Services, Inc., 2015 WL 9315986, at *2 (E.D.Pa., 2015), Judge Bartle granted summary judgment to an FDCPA plaintiff in a Douglass-type glassine window case, extending Douglass to prohibiting barcodes visible on dunning letters. The plaintiff here maintains that Douglass is directly on point and supports her summary judgment motion. She equates the visibility of the debtor's account… Read More

In Pirrone v. NCO Financial Systems, Inc., 2015 WL 7766393, at *1 (E.D.Pa., 2015), Judge Beetlestone followed the Douglass decision, finding that a QR code was the same as an account code that the FDCPA prohibited from being seen on or through the envelope. Plaintiff's claims are based on Section 1692f(8) of the FDCPA, which prohibits using “unfair or unconscionable means to… Read More

In Gardner v. Credit Management, LP, here, Judge Failla found for an FDCPA defendant, disagreeing with the Third Circuit's decision in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014).  To the extent that the Douglass Court was concerned with an account number’s potential for disclosing the recipient’s status as a debtor should a third party choose to investigate the number’s meaning, this… Read More

In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765,  (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed.  As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure:  name, company,… Read More

In Provo v. Rady Children's Hospital-San Diego, 2015 WL 3648845, at *2-3 (S.D.Cal.,2015), Judge Miller granted in part and denied in part a debt collector's motion to dismiss an FDCPA plaintiff's claim based on collection of a medical debt. Judge Miller found that the letter did not unlawfully seek to collect prejudgment interest without a judgment. Plaintiffs contend that a debt… Read More

In Montgomery v. GCFS, Inc., 2015 WL 3653314, at *1-2 (Cal.App. 1 Dist., 2015), the Court of Appeal affirmed dismissal of a Rosenthal Act claim premised on an alleged prohibition against assignment of a debt from a CFL holder to an unlicensed entity.  I've changed the order of the opinion somewhat for brevity here; but, the facts were as follows: In… Read More

In Bartell v. National Collegiate Student Loan Trust 2005-3, 2015 WL 1907337 (N.D. Cal. 2015), Judge Seeborg found that an FDCPA plaintiff stated a claim against the debt collectors. On September 19, 2013, Bartell received a telephone voice message including neither the caller’s identity nor a clear indication of the caller’s purpose. Upon tracing the number, she discovered the call… Read More