FDCPA (Fed & State)

In Richmond v. Medicredit, Inc., No. 5:21-CV-00068-KDB-DSC, 2022 U.S. Dist. LEXIS 130092, at *8 (W.D.N.C. July 22, 2022), Judge Bell denied an FDCPA defendant's summary judgment motion. The Court finds that there is a genuine issue of material fact as to whether Medicredit reported Richmond's debts as disputed to the credit reporting agencies ("CRAs"). The FDCPA protects consumers from certain… Read More

In Tukin v. Halsted Financial Services, LLC, Judge Wood found no Article III standing for a Hunstein claim (of sharing a consumer's data with a vendor) where the sharing was done by way of encrypted data transfer. First, of note, Judge Wood found no "glassine window" violation for use of an "Intelligent Mail Code" on the dunning letter's envelope. Count III alleges that… Read More

On July 15, the DFPI issued proposed regulations on the scope of  debt collection licensure required by the DCLA.  The text of the proposed regulations can be found  here:  PRO-05-21-Text-DCLA-Invitation-for-Comments.-7.14.22 There are a number of significant proposed regulations for licensees, applications, or potential licensees. First, the DFPI's proposed regulations would confirm that W-2 or true employees are not required to… Read More

In Fernandez v. Progressive Mgmt. Sys., No. 3:21-cv-00841-BEN-WVG, 2022 U.S. Dist. LEXIS 120329 (S.D. Cal. July 7, 2022), Judge Benitez allowed a UCL claim to proceed predicated on a Rosenthal Act violation where the customer did not allege to have paid money to the defendant. Defendant, however, is incorrect that Plaintiff must have paid EACMC monies to establish UCL standing.… Read More

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

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 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

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 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

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

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

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

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

In Weisz v. Sarma Collections, Inc., No. 21-CV-06230 (PMH), 2022 U.S. Dist. LEXIS 72692, at *5-8 (S.D.N.Y. Apr. 20, 2022), Judge Halpern threw out a Hunstein case based on lack of standing. Plaintiff seeks to recover statutory damages only and does not allege in the Amended Complaint that he was harmed in any way by the alleged FDCPA violations. Plaintiff… Read More

In a strange fact pattern, in Samano v. LVNV Funding, LLC, No. 1:21-cv-01692-SKO, 2022 U.S. Dist. LEXIS 72102, at *11-14 (E.D. Cal. Apr. 18, 2022), Magistrate Judge Oberto dismissed FDCPA claims derived from Plaintiff's complaint that the debt collector reported the Account as disputed when the Plaintiff previously had written to the debt collector to advise that he did not… 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 Muzi Gao v. Campus 150 Venture II, LLC, No. SACV 20-01355 DDP (ADSx), 2022 U.S. Dist. LEXIS 18370, at *8-9 (C.D. Cal. Jan. 31, 2022), Judge Pregerson held that ancillary charges associated with residential rent may be a "consumer credit transaction" under the Rosenthal Act, even if the rent itself was not. The RFDCPA limits the ways in which… Read More

In Wolfson v. Bank of Am., N.A., No. 20-35792, 2021 U.S. App. LEXIS 37864, at *2 (9th Cir. Dec. 21, 2021), the Court of Appeals affirmed dismissal of an FDCPA claim. The district court properly dismissed Wolfson's FDCPA claims because Wolfson failed to allege facts sufficient to show that defendant Bank of America, N.A., is considered a debt collector under… Read More

In Bbbb Bonding Corp. v. Caldwell, No. A162453, 2021 Cal. App. LEXIS 1100, at *2-4 (Ct. App. Dec. 29, 2021), the Court of Appeal found that bail bond premium financing agreements are "consumer credit contracts". This appeal requires us to interpret a long-standing consumer protection statute in a novel context: whether the requirement under Civil Code section 1799.91 that notice… Read More