Skip to Content (Press Enter)

Skip to Nav (Press Enter)

CEB Prac. Guide § 2A.34B -- False or Misleading Representations (Legal Status of Debt or Charges)

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

On June 29, 2022, the CFPB issued an Advisory Opinion on collection of "convenience fees".  https://www.consumerfinance.gov/about-us/newsroom/cfpb-moves-to-reduce-junk-fees-charged-by-debt-collectors/  A copy of the Advisory Opinion can be found here. Severson has been following the CFPB's evolving position(s) and regulation of "convenience fees".   CFPB-2017-S&WConvenience-Fees-Bulletin; 2018-AmericanBarAssociation-Article-on-Convnience-Fees Referring to its 2017 Compliance Bulletin, the CFPB stated: For example, in 2017, the CFPB issued a compliance bulletin… Read More

In Snyder v. Finley & Co., L.P.A., No. 21-3997, 2022 U.S. App. LEXIS 16512, at *1 (6th Cir. June 15, 2022), the Court of Appeals for the 6th Circuit explained how, and when, a debt collector can be found liable when losing litigation on the debt itself; i.e. does the debt collector ipso facto violate the FDCPA when it loses… Read More

In Almada v. Krieger Law Firm, A.P.C., No. 21-55275, 2022 U.S. App. LEXIS 1946, at *4-5 (9th Cir. Jan. 24, 2022), the Court of Appeals for the Ninth Circuit held that a dunning letter was not deceptive because "fees" claimed were "paralegal" fees. Almada argues that Kriger's assessment of the prelien fee violates the FDCPA because the fee was not… Read More

In Mariscal v. Flagstar Bank, FSB, No. ED CV 19-2023-DMG (SHKx), 2021 U.S. Dist. LEXIS 171374, at *4-8 (C.D. Cal. Sep. 9, 2021), Judge Gee dismissed, a second time, the Plaintiff's Rosenthal Act Class Action challenging a mortgage company's "pay-to-pay" fees. The fee itself need not be a debt, as long as it is connected to the collection of a… Read More

In Kaiser v. Cascade Capital, LLC, 2021 U.S. App. LEXIS 6754, the Ninth Circuit Court of Appeals reversed the ruling of the District Court for the District of Oregon that granted a motion to dismiss where the District Court reasoned the debt collector did not violate the FDCPA prohibitions on attempting to collect on a time barred debt because the… Read More

In Elbert v. RoundPoint Mortg. Servicing Corp., No. 20-cv-00250-MMC, 2020 U.S. Dist. LEXIS 221611 (N.D. Cal. Nov. 25, 2020), Judge Chesney allowed a Rosenthal Act claim to proceed against a mortgage servicer based on charges assessed when the consumer made payments by telephone. As noted, a violation of the FDCPA constitutes a violation of the Rosenthal Act as well. See… Read More

In Lembeck v. Arvest Cent. Mortg. Co., No. 20-cv-03277-VC, 2020 U.S. Dist. LEXIS 205511, at *1-5 (N.D. Cal. Nov. 3, 2020), Judge Chhabria denied a mortgage servicer's FRCP 12(b)(6) motion regarding the propriety of the servicer's charging the Plaintiffs an IVR fee to make their mortgage payments. Valerie Lembeck alleges that her mortgage servicer, Arvest Central Mortgage Company, violates California… Read More

In Ruiz v. Hunt & Henriques, No. D075286, 2020 Cal. App. Unpub. LEXIS 4847 (July 29, 2020), in the context of an anti-SLAPP motion brought by the debt collection law firm, the Court of Appeal found that a debtor need not dispute the debt to challenge the amount of the debt stated. Hunt alternatively argues that Ruiz cannot recover under… Read More

In Cavalry SPV I, LLC v. Watkins, No. D072299, 2019 Cal. App. LEXIS 603, at *12-15 (Ct. App. July 1, 2019), the California Court of Appeal addressed the evidence necessary to prove up a credit card debt in a debt collection action. Assuming without  deciding that California law applies, a party may accept a contract by conduct, as well as… Read More

In Brown v. I.C. Sys., No. 16 C 9784, 2019 U.S. Dist. LEXIS 45384 (N.D. Ill. Mar. 20, 2019), Judge Alonso denied a debt collector’s summary judgment motion, first finding that the call pattern created a question of fact. Defendant argues that its recordings of connected calls show that plaintiff never told defendant to stop calling; on the few occasions… Read More

In Sanders v. LoanCare LLC, No. 18-CV-09376, 2019 U.S. Dist. LEXIS 20900, at *2-3 (C.D. Cal. Feb. 1, 2019), Judge Otero addressed, albeit in a mortgage situation, whether the collection of an online payment fee during a 10-day grace period triggered the Rosenthal Act.  The facts were as follows: In February 2018, Plaintiff received a Notice of Service Transfer ("Notice")… Read More

In Alarcon v. Vital Recovery Services, Inc., 2018 WL 6266558, at *4 (S.D.Cal., 2018), Judge Burns granted summary judgment under the FDCPA in favor of a debt collector who collected, by non-judicial means, on a debt that previously had been adjudicated in favor of the debtor. The question presented in this case is whether that ruling in favor of Alarcon in… Read More

In Coyne v. Midland Funding LLC, 2018 WL 3423469, at *2–3 (8th Cir. 2018), the Court of Appeals for the Eighth Circuit held that an FDCPA Plaintiff had pleaded a claim against a debt collector based on their claim that the debt collector's dunning letter had compounded interest in violation of state law and the contract forming the obligation. It is undisputed that Minnesota… Read More

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

In Tatis v. Allied Interstate, LLC., 2018 WL 818004, at *3 (C.A.3 (N.J.), 2018), the Court of Appeals for the Third Circuit held that a letter that offered to "settle" a time-barred debt could be deceptive. Thus, Huertas stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so… Read More

In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling. As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on… Read More

In Lindblom v. Santander Consumer USA Inc., 2018 WL 500347, at *6–7 (E.D.Cal., 2018), Magistrate Judge McAuliffe denied an automobile finance company's summary judgment in a class action complaining that its SpeedPay program violated the Rosenthal Act. Defendant does not contend that the Speedpay fee is written or otherwise expressly authorized in the Contract. Rather, Defendant concedes that Contract is… Read More

In Afewerki v. Anaya Law Group, 2017 WL 3567829, at *4–5 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit held that a misstatement of the debt in a debt collection complaint was material. We agree and conclude that Anaya Law Group's $3,000 overstatement of the principal due in the state court complaint,2 exacerbated by the statement of an… Read More

1 2