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CEB Prac. Guide § 2A.61 -- Defenses -- Statute of Limitations

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In Brown v. Transworld Sys., Inc., No. 22-35244, 2023 WL 4536970, at *4–5 (9th Cir. July 14, 2023), the Court of Appeals for the 9th Circuit affirmed its prior decision in Walls v. Wells Fargo. We held that Walls did not preclude his claim because “whether an unfair debt collection practice occurred does not depend on issuance or enforcement of… Read More

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 Hayward v. Bank of Am., N.A., No. 2:16-cv-03047-MCE-DMC, 2020 U.S. Dist. LEXIS 60318, at *19-25 (E.D. Cal. Apr. 6, 2020), Judge England denied summary judgment in a Rosenthal Act case. In support of her Second Claim, for violation of California's Rosenthal Act, Plaintiff alleges that [*20]  BANA made harassing calls to Plaintiff and in so doing used false and unconscionable… Read More

In Faircloth v. AR Res., Inc., No. 19-cv-05830-JCS, 2020 U.S. Dist. LEXIS 28335 (N.D. Cal. Feb. 19, 2020), Judge Spero found that the discovery rule did not apply to either the FDCPA or Rosenthal Act. 1. The Discovery Rule Does Not Apply to the FDCPA.  Defendant claims that the FAC should be dismissed because claims brought under the FDCPA and… Read More

In Rotkiske v. Klemm, 28 Fla. L. Weekly Fed. S. 8 (U.S. 2019), the Supreme Court rejected the application of a discovery rule in FDCPA cases. Rotkiske does not contest the plain meaning of §1692k(d)’s text or claim that he brought suit within one year of the alleged FDCPA violation. Instead, he suggests that we should interpret §1692k(d) to include… Read More

In Galicia v. PlusFour, Inc., 2018 WL 3543039, at *3–5 (D.Nev., 2018), Judge Mahan granted a motion to dismiss FCRA and FDCPA claims based on the applicable statute(s) of limitations. First, the Court found that the FCRA claims were barred, and were not tolled due to subsequent reporting. Here, plaintiff discovered the violations and began reporting the inaccuracies in his… Read More

In Rotkiske v. Klemm, 2018 WL 2209120 (3rd Cir. 2018), the Court of Appeals for the Third Circuit held that the FDCPA’s Statute of Limitations has no discovery rule, disagreeing with the 4th and 9th Circuits. The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation… Read More

In Brandt v. Ocwen Loan Servicing, LLC, 2017 WL 5878581, at *8 (E.D.Cal., 2017), the Court allowed a Rosenthal Act claim to proceed despite some calls being placed outside the statute of limitations. Here, according to the allegations of the first amended complaints, the calls made before the filing of plaintiffs' actions on the respective dates in May 2017 reflect a continuing… Read More

In Montegna v. Ocwen Loan Servicing, LLC, 2017 WL 4680168, at *8–9 (S.D.Cal., 2017), the District Court found that a Rosenthal Act claim survived a statute of limitations challenge based on the plaintiff's allegation of a "continuing violation". Second, as for Plaintiff's claim under the Rosenthal Act, the applicable statute of limitations provides a plaintiff a year from an alleged violation to… Read More

In Caruso v. Merchant's Credit, 2017 WL 2972415, at *3 (S.D.Cal., 2017), the District Court found limited standing for a TCPA plaintiff. Further, although unwanted telephone calls can create an actual, albeit intangible, injury sufficient to constitute standing, unwanted telephone calls to a relative—even a mother—do not. See Olney v. Progressive Cas. Ins. Co., 993 F. Supp. 2d 1220, 1225… Read More

In Contreras v. Portfolio Recovery Associates, LLC, 2017 WL 2964012, at *3 (N.D.Cal., 2017), Judge Corley held that discrete abusive acts were not subject to the continuing violation doctrine. The FDCPA also prohibits “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”… Read More

In Lyons v. Michael & Associates, 2016 WL 3192623 (9th Cir. 2016), the Court of Appeals applied the discovery rule to an FDCPA case. Deborah Lyons appeals the district court's dismissal of her case against Lina Michaels and Michael & Associates on the ground that it was time-barred. Lyons alleges that the defendants are debt collectors who violated the Fair Debt… Read More

In Benzemann v. Citibank N.A., 2015 WL 7145772, at *4-5 (C.A.2,2015), the Court of Appeals for the Second Circuit found that an FDCPA violation “occurs” for the purposes of the FDCPA's statute-of-limitations provision when a bank freezes a debtor's bank account, not when a debt collector sends a restraining notice to the bank. We recognize that, in the context of FDCPA claims… Read More

In Finley v. Dynamic Recovery Solutions, LLC, 2015 WL 5728307 (N.D. Cal. 2015), Judge Henderson granted summary judgment to a succession of debt collection agencies based on the staleness of the claim and the lack of imputed knowledge to the latter agencies that the debtor was represented by counsel. The facts were as follows: In June of 2001, banks and… Read More

In Martha A. McNair v. Maxwell & Morgan PC, et al., 2015 WL 5561297, at *4-6 (D.Ariz., 2015), the District Court analyzed how to apply the FDCPA statute of limitations to violations that continue over time. The Supreme Court has adopted a different approach, however, for hostile work environment claims under Title VII. It has explained that such claims: "are different… Read More

In Consumer Financial Protection Bureau v. Frederick J. Hanna & Associates, P.C., Judge Totenberg rejected a debt collection law firm's constitutional challenge under the Noerr-Pennington doctrine and the equal protection doctrine to the CFPB's authority to bring claims against it.  As to the latter, the District Court found no equal protection violation for placing debt collection law firm's clients on different… Read More

In Cutler ex rel. Jay v. Sallie Mae, Inc., 2015 WL 1909482 (C.D. Cal. 2015), Judge Fitzgerald found that the FDCPA’s “continuing violation” doctrine did not apply to exempt a Plaintiff’s FDCPA claims from the FDCPA’s 1-year statute of limitations. Determining whether the statute of limitations bars a FDCPA and/or RFDCPA claim depends on an analysis of the type of… Read More

In Slorp v. Lerner, Sampson & Rothfuss, --- Fed.Appx. ----, 2014 WL 4800100 (6th Cir. 2014) refused to apply the continuing violation doctrine to an FDCPA case. Application of the continuing-violation doctrine to FDCPA claims would be inconsistent with the principles underlying the Supreme Court's limited endorsement of that doctrine in Morgan. In Morgan the Court differentiated between discrete acts and continuing… Read More

In Lyons v. Michael & Associates, 2013 WL 4680179 (S.D.Cal. 2013), Judge Burns refused to apply the ‘discovery rule’ to toll the FDCPA statute of limitations with regard to claims arising from an underlying debt collection lawsuit. A FDCPA claim must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The parties… Read More

In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act. In… Read More

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