That California legislature last year passed last year SB 531, which became effective July 1, 2022, imposing additional validation requirements on certain debt collectors under the Rosenthal Act. The bill was designed to do as follows: This bill would require a debt collector to which delinquent debt, as defined and specified, has been assigned to provide to the debtor, upon… Read More
In Palacio v. Med. Fin. Sols., No. 21 CV 1288, 2022 U.S. Dist. LEXIS 105459, at *11-15 (N.D. Ill. June 14, 2022), Judge Shah dismissed an FDCPA claim because the debt was not in default at the time of the assignment. An entity can act as both a creditor and a debt collector, but for the purposes of a particular… Read More
In Reygadas v. DNF Assocs., LLC, No. 19-3167, 2020 U.S. App. LEXIS 38989 (8th Cir. Dec. 14, 2020), the Court of Appeals held that a debt buyer was subject to the FDCPA. Emphasizing that the Supreme Court in Henson overruled the so-called "default test," DNF argues that the debt buyer is a creditor -- a person "to whom a debt… Read More
In Denicolo v. Hertz Corp., No. 19-cv-00210-YGR, 2020 U.S. Dist. LEXIS 181248 (N.D. Cal. Sep. 30, 2020), Judge Rogers denied a debt collector’s MSJ arising out of a rental car contract arising from a debtor’s business trip. In Chyba, defendant claimed that plaintiff had incurred damage to a rental vehicle and that summary judgment on the FDCPA claim should be… Read More
In Wagoner v. Npas, Inc., No. 3:18-CV-520 DRL-MGG, 2020 U.S. Dist. LEXIS 73381 (N.D. Ind. Apr. 27, 2020), Judge Leichty granted summary judgment under the FDCPA to an ‘early out’ debt servicer. NPAS serves as an "early-out" collector and extended business office for healthcare systems. A company hired to service the debt of another—i.e., send bills and collect routine payments—falls… Read More
In Randall v. Ditech Financial, LLC., 2018 WL 2355927, at *3 (Cal.App. 4 Dist., 2018), the California Court of Appeal found that an FDCPA Plaintiff stated a claim against a mortgage servicer who accepted assignment of a loan that already was in default. Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular… Read More
In Simpson v. American Credit Acceptance, LLC, 2017 WL 1968284, at *3–4 (E.D.Tenn., 2017), Judge Guyton granted summary judgment to an auto finance company under the FDPCA because the account was not in default at the time of the assignment. The Defendant asserts that it is not subject to the FDCPA because it is not a debt collector. Further, the… Read More
In Church v. Accretive Health, Inc., here, the Court of Appeals for the 11th Circuit held that collection on a debt that was not in default at the time of the assignment does not trigger the FDCPA. Thus, if the debt at issue was not in default at the time it was obtained by a third party agency, the agency’s… Read More
In Davidson v. Capital One Bank (USA), N.A., 2014 WL 4071891 (N.D.Ga. 2014), Judge Duffey held that an entity that acquires a portfolio with both current and defaulted debt is not subject to the FDCPA as to those loans in the portfolio that were in default at the time of the purchase. Judge Duffey held that 15 USC 1692a(6)’s application… Read More
In Fontell v. Hassett, --- Fed.Appx. ----, 2014 WL 2464987 (4th Cir. 2014), the Court of Appeals for the Fourth Circuit distinguished between “default” and mere “delinquency” in determining, under the FDCPA, whether an account was “in default” at the time it was obtained. Excluded from the FDCPA's definition of debt collectors, see 15 U.S.C. § 1692a(6) is “any person… Read More
In Hambrick v. Wells Fargo Bank, N.A., 2009 WL 1532676 (N.D.Miss. 2009), Judge Pepper required a Plaintiff to plead each element of the definition of “debt collector”, denying the Plaintiff the right to conduct discovery in order to be able to plead one of the elements. The issue involved whether, when Wells Fargo took assignment of the debt, the debt… Read More
In McKinney v. Cadleway Prop., Inc. (7th Cir. 2008) __ F.3d. __, the Court of Appeals for the Seventh Circuit defined the extent to which an assignee purchasing a debt in default becomes subject to the FDCPA. The Court of Appeals held that "the purchaser of a debt in default is a debt collector for purposes of the FDCPA even… Read More
