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CEB Prac. Guide § 2A.37 -- Communications with the Debtor -- Validation of the Debt -- Required Notices from the Debt Collector -- Federal

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District Court (Cal.) Confirms Foreclosure Trustee is Not Subject to FDCPA; Inclusion of ‘Mini-Miranda’ in Statutory Notices Does Not Change the Conclusion

by Scott J. Hyman |

In Gonzalez v. CNA Foreclosure Service, Inc., 2011 WL 2580681 (S.D.Cal. 2011), Judge Anello held that a foreclosure trustee was not a debt collector under federal and state law, and that inclusion of the FDCPA’s ‘mini-Miranda’ in statutory notices did not otherwise render the trustee subject to the FDCPA.   Based on Ms. Canty's undisputed testimony, the Court concludes CNA… Read More

District Court (Fla.) Finds Non-Debtor Stated No Harassment Claim

by Scott J. Hyman |

In Sclafani v. BC Services, here, Judge Huck held refused to allow an FDCPA harassment claim by a non-debtor to proceed against a debt collection agency.  As to the mini-Miranda requirement, Judge Huck explained:    To allow a person who knows that he does not owe a debt, and does not even know the debtor, to bring suit as a… Read More

District Court (Ill.) Finds Voicemail Messages Constitute Collection Activity

by Scott J. Hyman |

In Hutton v. C.B. Accts. Inc., 2010 WL 3021904 (C.D.Ill. 2010), Judge McCuskey held that a debt collector’s message on an answering machine constituted collection activity under the FDCPA even though no collection activities were mentioned, following the 7th Circuit’s recent decision in Gburek v. Litton Loan Servicing LP, ---F.3d ----, 2010 WL 2899110, at *4 (7th Cir. 2010) and… Read More

District Court (Cal.) Follows Foti on Voicemail Messages; Certifies Question to the 9th Circuit

by Scott J. Hyman |

In Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010), Judge Houston addressed the applicability of Foti to leaving voicemail messages on a debtor’s answering machine. Courts have held that not disclosing the above prescribed facts in a message left for the debtor can be a violation of § 1692e(11) [i.e. the mini-Miranda]. See Costa… Read More

Northern District Denies Plaintiff’s Summary Judgment Motion under Foti

by Scott J. Hyman |

In Reed v. Global Acceptance Credit Company, 2008 WL 3330165 (N.D.Cal. 2008), Judge Whyte rejected plaintiff's claim under Foti v. NCO Fin. Systems, Inc. 424 F.Supp.2d 643 (S.D.N.Y. 2006) and Hosseinzadeh v. M.R.S. Assocs, Inc. 337 F.Supp.2d 1104 (C.D.Cal. 2005) that a debt collector's failure to identify itself as a "debt collector" under 15 U.S.C. 1692e(11) violated that provision.  Here,… Read More

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