FDCPA (Fed & State)

In Jones v. Synergetic Communication, Inc., Case No. 18-CV-1860-BAS-RBB, 2018 WL 6062414 (S.D. Cal. November 20, 2018), the District Court dismissed an FDCPA claim brought against a debt collector arising out of a letter collecting on a time-barred debt. The Court concludes that, in the context of this case, the “will not sue” language could not plausibly mislead the least… Read More

In Hatuey v. IC System, Inc., Civ. No. 1:16-CV-12542-DPW, 2018 WL 5982020 (D.Mass. Nov. 14, 2018), Judge Woodlock granted summary judgment to a debt collector on FDCPA and TCPA claims. On the FDCPA claim, the Court held that a cease and desist with respect to one account did not operate with respect to a second account. Although both the calls in… Read More

In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More

In Gibbons v. Weltman, Weinberg, & Reis, Co., LPA, 2018 WL 5720749 (E.D. Pa. 2018), Judge Slomsky certified an FDCPA class over objections that the class size compared to the FDCPA’s class action cap could reduce the class members’ individual recovery to such an extent that class certification was not the superior method of adjudicating the mass action. Based on… Read More

In McRobie v. Credit Protection Association, 2018 WL 5608121 (E.D.Pa. 2018), Judge Leeson held that a red, white, and blue texted envelope that said “official notice” on it did not constitute misrepresenting that the communication was from a government official under the FDCPA. Case law interpreting § 1692e(9) is sparse. The parties cite no Third Circuit precedent interpreting the provision;… Read More

In Duncan v. Asset Recovery Specialists, Inc., Case No. 17-2598, 2018 WL 5623325 (7th Cir. Oct. 31, 2018), the Court of Appeals for the Seventh Circuit held that a repossession agency’s enforcement of an administrative fee did not trigger the FDPCA because it was not acting as the automobile finance company’s agent in doing so. The record on summary judgment… Read More

In Derosa v. CAC Financial Corp., Case No. 17-3189, 2018 WL 5344906 (2nd Cir. October 29, 2018), the Court of Appeals for the Second Circuit held in an unpublished decision that a dunning letter is deceptive under the FDCPA for failing to state that interest will and fees will accrue only if, in fact, interest and fees actually will and… Read More

In Blaker v. Credit One Bank, 2018 WL 5307470, at *3–4 (S.D.Cal., 2018), Magistrate Judge Adler found remanded a removed action to a state court that had been arbitrated and Plaintiff attempted to confirm.  The facts were as follows: Plaintiffs Richard and Samantha Blaker initiated this lawsuit by filing a complaint in San Diego County Superior Court on March 25,… Read More

In Jenkins v. Bayview Loan Servicing, LLC, 2018 WL 5255318, at *3 (C.D.Cal., 2018), Judge Olguin remanded a Rosenthal Act claim due to the absence of federal jurisdiction. Bayview contends that federal question jurisdiction exists because the Complaint refers to the FDCPA. (See Dkt. 1, NOR at 3). However, the Complaint asserts only state-law claims, including California’s Rosenthal Fair Debt… Read More

In Rudio v. Credit Control, LLC, 2018 WL 4772303  (N.D.Cal., 2018), Judge Donato dismissed an FDCPA and Rosenthal Act claim. Credit essentially inverts Rudio’s claim to contend that the FDCPA does not apply to settled or expunged debts. The point is not well taken. The FDCPA defines “debt” to include an “alleged obligation of a consumer” to pay money, “whether… Read More

Has Judge Sammartino in the U.S.D.C. for the Southern District of California seen “Who Framed Roger Rabbit”.  In Barvie/Herman v. Bank of America, 2018 WL 4537723  (S.D.Cal., 2018), “Baby Herman” had some unauthorized charges debited from Baby Herman’s account, which didn’t go over none-too-well. Plaintiffs gave birth to a child (“Baby Herman”) and subsequently opened up a savings account with Defendant in… Read More

In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More

In Chacker v. JPMorgan Chase Bank, N.A., 2018 WL 4474732, at *7 (Cal.App. 2 Dist., 2018), the Court of Appeal declined to award reverse attorneys' fees under the Rosenthal Act. Plaintiff's operative complaint alleged, in its third cause of action, that Chase engaged in unlawful debt collection practices in violation of the Rosenthal Act and an analogous federal statute. We… Read More

In Taylor v. Alltran Financial, LP, 2018 WL 4403335, at *3–4 (S.D.Ind., 2018), the District Court certified an FDCPA class over the Defendant's objection that some of the debts might be commercial debts. Here, Defendants’ argument that the proposed class could contain individuals who received commercial or business loans, and who would therefore be ineligible under the FDCPA, makes no… Read More

In Tourgeman v. Nelson & Kennard, here, the Court of Appeals for the Ninth Circuit held that the Plaintiff bore the burden of proving the defendant's net worth under the FDCPA's penalty provision. Here, Tourgeman had every opportunity to acquire evidence of Nelson & Kennard's net worth. A protective order was entered to give Tourgeman access to Defendant's financial information,… Read More

In Tepper v. Amos Financial, LLC, 2018 WL 3733862, at *6 (C.A.3 (Pa.), 2018), the Court of Appeals for the Third Circuit found that a debt buyer is still subject to the FDCPA post-Henson because the principal purpose was the collection of defaulted debt. Many would gladly pay Tuesday for a hamburger today. Of course, not all of those who… Read More

In Vangorden v. Second Round, Limited Partnership, 2018 WL 3595759, at *4–5 (2nd Cir., 2018), the Court of Appeals discussed whether the validation process must first be engaged by the consumer before the consumer can state a claim. Second Round argues that it is evident from this statutory scheme—which affords consumers the right to dispute debts, precludes efforts to collect… Read More

In Macy v. GC Services, Ltd., 2018 WL 3614580, at *9–10 (C.A.6 (Ky.), 2018), the Court of Appeals for the Sixth Circuit found that FDPCA Plaintiffs, and their class, had Spokeo standing. Thus, Lyshe is distinguishable. Here, the harm Plaintiffs allege—being misled by a debt collector about the rights the FDCPA gives to debtors—is precisely the type of harm—abusive debt-collection… Read More

In Galicia v. PlusFour, Inc., 2018 WL 3543039, at *3–5 (D.Nev., 2018), Judge Mahan granted a motion to dismiss FCRA and FDCPA claims based on the applicable statute(s) of limitations. First, the Court found that the FCRA claims were barred, and were not tolled due to subsequent reporting. Here, plaintiff discovered the violations and began reporting the inaccuracies in his… Read More

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