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CEB Prac. Guide § 2A.19 -- Debts to which the FDCPA Apply -- Federal -- In Rem Proceedings

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California Court of Appeal Holds Rosenthal Act Can Apply to a Nonjudicial Foreclosure

by Scott J. Hyman |

In Best v. Ocwen Loan Servicing (May 21, 2021) ___Cal.App.5th___ [2021 Cal. App. LEXIS 423] the court rejected arguments by a mortgage loan servicer and beneficiary that the Rosenthal Fair Debt Collection Pracitices Act did not apply to non-judicial foreclosures, relying on Obduskey v. McCarthy & Holthus LLP (2019) 139 S.Ct. 1029 and Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th… Read More

2d Cir. Says Collections in Connection with Enforcement of Security Interest in Real Property Not Necessarily Exempt from FDCPA

by Scott J. Hyman |

In Cohen v. Rosicki, Rosicki & Associates, P.C., 2018 WL 3520253, at *4 (C.A.2 (N.Y.), 2018), the Court of Appeals for the Second Circuit held that collection activities relating to enforcement of a security interest in real property was not necessarily exempt from the FDCPA. We next address the district court's conclusion that actions taken within a foreclosure action do… Read More

9th Circuit Clarifies that While a Trustee Engaged in Non-Judicial Foreclosure is Not a Debt Collector, Attorneys Pursuing Judicial Foreclosure Were Debt Collectors

by Scott J. Hyman |

In McNair v. Maxwell & Morgan PC, 2018 WL 3097153 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit clarified when attorneys are engaged in debt collection under the FDCPA. Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency… Read More

9th Cir. Says Delinquent HOA Assessments are “Debts” Under FDCPA; Clarifies When Enforcement of Security Interests Also Triggers FDCPA

by Scott J. Hyman |

In Mashiri v. Epsten Grinnell & Howell, 2017 WL 127565, at *4 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit weighed in on the split of authority amongst the circuit courts, finding that delinquent HOA assessments are "debts" under the FDCPA. The contents of the May Notice plainly belie Epsten's contention that it did not attempt to… Read More

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

Cal. District Courts Say Foreclosure Not Collection Activity Under Either FDCPA or Rosenthal Act

by Scott J. Hyman |

In Hepler v. Washington Mut. Bank, F.A., 2009 WL 1045470 (C.D.Cal. 2009), Judge Snyder held that a mortgage company foreclosing on a home was not subject to either the FDCPA nor the Rosenthal Act, explaining:   To be held liable for violation of the FDCPA, a defendant must-as a threshold requirement-fall within the FDCPA's definition of “debt collector.” See Heintz… Read More