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CEB Prac. Guide § 2A.56 -- Defenses -- Collateral Estoppel -- Permissive and Compulsory Counter-Claims

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In Paredes v. Credit Consulting Servs., No. H048092, 2022 Cal. App. Unpub. LEXIS 4848, at *28-31 (Aug. 8, 2022), the Court of Appeal affirmed denial of an anti-Slapp motion filed against a Rosenthal Act complainant suing over alleged misrepresentations made in a debt collection complaint.  First, the Court found that the Rosenthal Act cross-complaint was not barred by the statute… Read More

In Walker v. Westlake Fin. Servs., No. 19 C 6921, 2020 U.S. Dist. LEXIS 105794 (N.D. Ill. June 17, 2020), Judge Kendall permitted an FDCPA/TCPA defendant to file a counter-claim on the debt back against the Plaintiff. Walker, however, takes too narrow a view and disregards several relevant facts. Here, Westlake's claim involves "the same parties, contracts, and course of… Read More

In Trupp v. Ally Financial, Inc., Civ. Action No. 17-5404, 2018 WL 2462777 (E.D. Pa. May 31, 2018), Judge Jones allowed a TCPA defendant to file a counter-claim for the debt against the Plaintiff. Plaintiff’s contention that “it is clear [the] federal TCPA claim and the state law breach of contract counterclaim involve completely different legal theories and evidence,” is not… Read More

In Gonzalez v. Chase Bank, USA, Case No.: 3:18-cv-00431-CAB-AGS,  2018 WL 2461490 (S.D. Cal. June 1, 2018), the District Court allowed a TCPA/FDCPA defendant creditor to counter-claim against the Plaintiff for the debt due and owing. The Court is inclined to follow the majority of Ninth Circuit district courts cited above, and finds that supplemental jurisdiction exists over a defendant’s… Read More

In Rahman v. San Diego Accounts Service, Inc, 2017 WL 1387206 (S.D. Cal. 2017), the District Court found that a debt collector could assert "offset" of the balance owing on the debt to the Plaintiff's Rosenthal Act/FDCPA claim. Defendant’s final affirmative defense is one of “offset.” Specifically, “Defendant contends that any recovery by Plaintiff be offset by the amount owed… Read More

In Godinez v. Law Offices of Clark Garen, 2016 WL 4059718, at *1 (C.D.Cal., 2016), Judge Carney dismissed a state law debt collection counter claim filed in response to an FDCPA action because the debt collection claim was permissive, not compulsory. Godinez claims that Defendants violated the FDCPA and the RFDCPA by engaging in unlawful debt collection practices, and Best… Read More

In Black v. Autovest, LLC, 2015 WL 9461484, at *4 (D.Ariz., 2015), Judge Boyle denied a debt collection firm's motion to dismiss an FDCPA claim grounded in collection of post-repossession deficiency -- even though the bank already had a judgment against the FDCPA Plaintiff on the debt owing.  The District Court found the FDCPA action not barred by Rooker-Feldman. Defendants rely… Read More

In Sykes v. Mel S. Harris and Associates LLC, --- F.3d ----, 2015 WL 525904 (2d Cir. 2015), the Court of Appeals for the Second Circuit certified a class against a debt collector who purported to operate a mill that resulted in illegal default judgments in New York City.  These default judgments, in the words of plaintiffs, are the result… Read More

In Robles v. Ally Bank, 2013 WL 28773 (S.D.Cal. 2013), Judge Battaglia found, in an FDCPA harassment case, that a cross-complaint for the debt was permissive and that there was supplemental jurisdiction to hear it.  Judge Battaglia, however, declined to exercise that jurisdiction. Although the Ninth Circuit has not specifically addressed “whether a counterclaim for the underlying debt in an FDCPA… Read More

In Jobe v. Alliance Collection Service, 2012 WL 3985182 (N.D.Miss. 2012), Judge Aycock held that a debt collector’s counter-claim to an FDCPA claim to collect on the debt itself was permissive, rather than compulsory, and declined to exercise jurisdiction over it. Although the Fifth Circuit has not directly addressed the question of whether an action to collect on an underlying… Read More

In Greenberg v. Hunt and Henriques, 2011 WL 4639833 (C.D.Cal. 2011) Judge Nguyen found a consumer collaterally estopped from pursuing an FDCPA case in federal court based on the improper filing and prosecution to judgment of a state court collection action.  The district court found that the plaintiff was collaterally estopped to challenge the state court action, and that the… Read More

In Unangst v. Evans Law Associates, P.C., --- F.Supp.2d ----, 2011 WL 2855318 (N.D.N.Y., 2011), Judge Sharpe declined to exercise jurisdiction over the debt collection counter-claim in a pending FDCPA action, explaining: While not directly ruling on the issue, the court notes Unangst's argument and finds persuasive the line of cases which have held that even if supplemental jurisdiction were found, there… Read More

In Marchand v. Chase Bank USA, N.A., 2011 WL 1296711 (C.D.Cal. 2011), Judge Pregerson found that a debt collection counter-claim in federal court was permissive to the underlying Rosenthal Act claim, and declined to exercise supplemental jurisdiction to hear it.  (See, e.g. Sparrow v. Mazda American Credit, 385 F.Supp.2d 1063, 1068 (“breach of contract counterclaims for the underlying debt are… Read More

In Weldon v. Asset Acceptance, LLC, 2011 WL 902018 (S.D.Ind. 2011), Judge Magnus-Stinson addressed the intersection between the Rooker-Feldman doctrine and res judicata with regard to a debt collector filing suit on a time-barred debt in state court.  Judge Magnus-Stinson held that the Rooker-Feldman doctrine did not deprive the district court of jurisdiction nor did res judicata provide the debt… Read More

In Marlin v. Chase Cardmember Services, Inc. 2009 WL 1405196 (E.D.Cal. 2009), Judge Beck held that, in an FDCPA case, a counter-claim for the debt is permissive, rather than compulsory.  Judge Beck explained:   However, although the Ninth Circuit has not specifically decided whether a counterclaim for the underlying debt in an FDCPA action is compulsory or permissive, most, if… Read More

In Gerber v. Citigroup, Inc. 2009 WL 248094 (E.D.Cal.2009), District Judge Moulds followed the Southern District's opinion in Sial v. Unifund CCR Partners, 2008 WL 4079281 (S.D.Cal.Aug.28, 2008), and rejected both the Norr-Pennington doctrine and the litigation privilege as defenses to a Rosenthal Act claim. This court is unpersuaded that the Noerr-Pennington doctrine bars actions under the FDCPA. Rather, this court finds… Read More

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

In Witt v. Experian Information Solutions, Inc. 2008 WL 2489132 (E.D.Cal. 2008), Witt sued a Real-Time Resolutions, Inc., a furnisher of credit information under FCRA.  On June 16, Judge O'Neal of the USDC for the Eastern District dismissed Real-Time's collection action, which Real-Time filed as a counter-claim to the FCRA claim.  Judge O'Neal, following Sparrow v. Mazda American Credit 385… Read More