CEB Prac. Guide § 2A.62 -- Defenses -- Litigation Privilege

In Picazo v. Kimball, Tirey, & St. John, LLP, 2018 WL 1583228, at *5 (S.D.Cal., 2018), Judge Miller granted an Anti-SLAPP action filed by a debt collector in a Rosenthal Act claim arising from alleged misconduct in a state court UD action.  Judge Miller first found that the Rosenthal Act prevailed over the litigation privilege under the facts of the… Read More

In Rodrigo v. Barclays Bank Delaware, 2017 WL 1155373, at *4–5 (S.D.Cal., 2017), Judge Houston dismissed an FDCPA case grounded in allegedly suing on a stale debt and filing a false proof of service in the underlying action. Construing all inferences in the light most favorable to Plaintiff, the Court finds that the state law collection action brought against Rodrigo… Read More

In Petley v. San Diego County Credit Union, 2017 WL 385742, at *4–5 (S.D.Cal., 2017), Judge Miller rejected the application of California's litigation privilege to Rosenthal Act claims arising out of filing actions on time-barred debts. SDCCU argues that the rule set forth in Komarova is limited to cases where the two statutes conflict, and that no such conflict exists… Read More

In Rodriquez v. Law Office of Robert King, --- F.Supp.3d ----, 2016 WL 3638119 (C.D. Cal. 2016), Judge Otero found that collections communications made in the course of a state law UD action were not protected by the litigation privilege. As a threshold matter, Defendants argue that, if the FDCPA or Rosenthal Act applied, the eviction notice would be subject to… Read More

In Ditlevson v. Legal Express, Ltd., 2015 WL 7454147, at *1-2 (N.D.Cal., 2015), Judge Chesney found that a Rosenthal Act defendant must plead specific facts to support a bona fide error affirmative defense, and cannot plead the litigation privilege as an affirmative defense at all. In the Third Affirmative Defense, Legal Express alleges that “any violation was unintentional and resulted despite the… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2015 WL 3796123, at *1 (S.D.Cal.,2015), Judge Moskowitz found that a debt collector's collection of traffic fines from the wrong person were not protected by the litigation privilege, but were not subject to the Rosenthal Act. Defendant was assigned to collect several unpaid traffic fines by the San Diego County Superior Court assessed against Gilberto… 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

In Farber v. JPMorgan Chase Bank N.A., 2014 WL 68380 (S.D.Cal. 2013), Judge Curiel found that mortgage servicers were subject to the Rosenthal Act, but found that only certain conduct might be actionable.  The facts were as follows: In September 2010, Farber sold the Property by way of a “short sale” with Defendant receiving approximately $1,139,345.00. (Id. ¶ 21.) In… Read More

In Holmes v. Electronic Document Processing, Inc., 2013 WL 4456544 (N.D.Cal. 2013), Judge Koh found that an FDCPA/Rosenthal Act claim predicated on ‘sewer service’ of process was not protected by the litigation privilege. Next, Defendants argue that Plaintiff's claim under the Rosenthal Act is barred by California's litigation privilege, California Civil Code § 47(b). Mot. to Dismiss at 10. Section… Read More

In Do v. Hollins Law, P.C., 2013 WL 4013659 (N.D.Cal. 2013), a debt collection law firm filed an anti-SLAPP motion against the Plaintiff arising from the Plaintiff’s Rosenthal Act claim.  Judge White denied the anti-SLAPP motion, finding that the law firm’s activities were not protected by the litigation privilege and the law firm was, in fact, subject to the Rosenthal… Read More

In People v. Persolve, (2013) 2013 DAR 10915, the Court of Appeal held that the litigation privilege is not a defense to a UCL action brought to enjoin business practices made unlawful by a statute more specific than Civil Code 47(b).  So, in this case, the People stated a good UCL claim against a debt collector for alleged unlawful business practices… Read More

In Boon v. Professional Collection Consultants, --- F.Supp.2d ----, 2013 WL 3973084 (S.D.Cal. 2013), Judge Huff found that California’s litigation privilege barred an RFDCPA claim based on filing a collection lawsuit that, purportedly, was barred by the statute of limitations. Moreover, the Court concludes that California's litigation privilege bars Plaintiff's RFDCPA claims. The California litigation privilege applies to any publication… Read More

Judge Karlton's precedent-setting and liability imposing decisions under the FDCPA are numerous.  (See., e.g, Newman v. Checkrite California, Inc., 912 F.Supp. 1354, E.D.Cal. 1995)(debt collector vicariously liable for debt collection activities of attorney; no FDCPA defense that collector was following the orders of the superiors; litigation privilege does not apply to FDCPA); Newman v. Checkrite California, Inc., 1994 WL 896637… Read More

In Truong v. Mountain Peaks Financial Services, Inc., 2013 WL 485763 (S.D.Cal. 2013), the District Court rejected application of the Rooker-Feldman doctrine and Noerr-Pennington doctrine to bar an FDCPA claim. Rooker–Feldman “is a narrow doctrine, confined to ‘cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court… Read More

In Santos v. LVNV Funding, LLC, 2012 WL 216398 (N.D.Cal. 2012), Judge Davila found that an FDCPA claim arising out of a debt collector’s failure to honor a settlement agreement in an underlying debt collection action was not protected by the Rooker-Feldman doctrine or the litigation privilege.  The facts were as follows.  Santos became delinquent on a consumer credit card… Read More

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:   In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are… Read More

In Carr v. Asset Acceptance, LLC, 2011 WL 3568338 (E.D.Cal. 2011), Judge O'Neill protected a debt collector from a UCL/Malicious Prosecution lawsuit deriving from rather uncomplicated facts.  AA was a debt buyer who retained a law firm, FFG, to collect on a charged off account.  FFG sued.  When the debtor propounded discovery asking for the factual basis of the debt, FFG… Read More

In McCullough v. Johnson, et. al., here, the Court of Appeals for the Ninth Circuit affirmed a large jury verdict against a debt collection law firm arising from the Firm's prosecution of a debt collection lawsuit. The facts, briefly stated, are as follows: A debt collection law firm in Montana was retained by a creditor to collect a credit card… Read More

In Allen v. LaSalle Bank, -- F.3d – (3d Cir. 2011), here, the Court of Appeals for the Third Circuit disagreed with the Ninth Circuit’s decision in Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934-39 (9th Cir. 2007) and found inter-counsel communications are subject to the FDCPA, explaining:    As noted above, the issue here is whether § 1692f(1)… Read More

In Komarova v. National Credit Acceptance, Inc. 2009 WL 1803263 (2009), the California Court of Appeal held that the litigation privilege does not provide a defense to a Rosenthal Act claim, and applied the “continuing violation” doctrine to allow recovery for violations of the Act that occurred beyond the statute of limitations.    As to the litigation privilege, the Court… Read More