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District Court (Cal.) Says Strike Two on FDCPA Plaintiff’s Contention that a Debt Collector Should Not Have Reported an Account as “Disputed” After the Debtor No Longer Disputed the Debt

by Scott J. Hyman |

We previously reported on this case here:  https://www.severson.com/consumer-finance/district-court-cal-finds-no-fdcpa-claim-based-on-reporting-account-as-disputed-when-debtor-did-not-dispute-the-debt/ Now, again, in Samano v. LVNV Funding, LLC, No. 1:21-cv-01692-SKO, 2022 U.S. Dist. LEXIS 114028, at *4-8 (E.D. Cal. June 27, 2022), Magistrate Oberta again granted a Motion to Dismiss, but again gave leave to amend, on whether credit reporting constituted debt collection activity. The purposes of the FDCPA are "to eliminate… Read More

CFPB Issues Advisory Opinion on “Pay-to-Pay” or “Convenience Fees”

by Erik W. Kemp |

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

6th Cir. Applies “Objectively Baseless” Standard to Ipso Facto Rule When Debt Collector Loses Prosecution of Action on the Debt

by Scott J. Hyman |

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

District Court (Ill.) Finds No C&D Violation under FDCPA for E-mail on Second Debt after Consumer’s Attorney Advises “I am representing this consumer” on First Debt

by Scott J. Hyman |

In Gilbert v. TrueAccord, Case No. 21-cv-485, 2022 U.S. Dist. LEXIS 111328 (N.D. Ill. June 23, 2022), Judge Alonso granted partial summary judgment to a debt collector on the consumer's claim that the debt collector violated her lawyers C&D demand by e-mailing on a debt after the lawyer had advised of the lawyer's representation in connection with another debt. Furthermore, the… Read More

District Court (Wash.) Adopts Hunstein Analysis in FDCPA Case

by Scott J. Hyman |

In Jackin v. Enhanced Recovery Co., LLC, No. 2:21-cv-00234-SMJ, 2022 U.S. Dist. LEXIS 104273, at *5-6 (E.D. Wash. June 10, 2022), Judge Mendoza adopted the Hunstein analysis in determining whether debt collectors can share consumer debt-related information with commercial mail vendors. Upon review of the record, the Court finds that Plaintiff has adequately alleged a violation of 15 U.S.C. § 1692c(b)… Read More

District Court (Tex.) Says Repossession Referral Agency is Subject to the FDCPA as Engaged in Debt Collection

by Scott J. Hyman |

In Melcher v. Titlemax of Tex., Inc., No. 3:21-cv-46, 2022 U.S. Dist. LEXIS 95414, at *11-13 (S.D. Tex. May 27, 2022), Judge Brown denied a motion to dismiss under the FDCPA filed by a repossession referral agency. MVTrac argues that despite the plaintiffs' allegations, it is neither a debt collector nor a skip-tracing company. Dkt. 29 at 7. Though there… Read More

District Court (Cal.) Says Heightened Pleading Standard Applies to Rosenthal Act When Grounded on Allegations of Fraud

by Scott J. Hyman |

In Castorina v. Bank of Am., N.A., No. 2:21-cv-02004 WBS KJN, 2022 U.S. Dist. LEXIS 83039, at *13-14 (E.D. Cal. May 5, 2022), Judge Shubb dismissed a Rosenthal Act claim under Rule 9(b). The heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to claims under the Rosenthal Act when premised on allegations of fraud, and here plaintiff's… Read More

Court of Appeal (Cal.) Finds that Law Enforcement Need Not Prove that Target is a “Debt Collector” under the Rosenthal Act to Issue Subpoena to Determine Whether Target is Subject to the Rosenthal Act

by Scott J. Hyman |

In People v. Alorica Inc., 77 Cal. App. 5th 60, 62-63 (2022), the Court of Appeal affirmed the authority of a District Attorney to issue a subpoena to determine whether an entity was subject to the Rosenthal Act.  The basis of the dispute was as follows. According to the Riverside County District Attorney's Office, in January 2019, the district attorneys'… Read More

6th Cir. Says Application for Garnishment to State Court Is a “”threat to take any action that cannot legally be taken” under 15 U.S.C. § 1692e(5), but Reverses So Debt Collector Can Explain the Factual and Legal Basis for the Application

by Scott J. Hyman |

In Thompson v. Renner, No. 21-1366, 2022 U.S. App. LEXIS 11706, at *10-12 (6th Cir. Apr. 28, 2022), the Court of Appeals for the 6th Circuit found that a garnishment application to a state court was a communication under under 15 U.S.C. § 1692e(5) But even without state-specific rules regarding affirmative representations, filing a garnishment request without reasonable belief that… Read More

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