In Hyde v. Midland Credit Management, Inc., --- F.3d ----, 2009 WL 1587902 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit held that the FDCPA (15 U.S.C. § 1692k(a)(3)) does not allow an award of reverse attorneys’ fees against the debtor’s attorney, only the debtor. In Hyde, the defendants prevailed on the merits against the debtor’s FDCPA… Read More
In Sullivan v. CTI Collection Services, 2009 WL 1587588 (M.D.Fla. 2009), Judge Moody held that threadbare recitals of the FDCPA fail to meet the pleading standard of FRCPs 8 and 12(b)(6). Judge Moody explained: While the Supreme Court has not explicitly overruled Conley, it has explicitly rejected the language relied on by Plaintiff in Bell Atlantic Corporation v.… Read More
In Dotson v. Portfolio Recovery Associates, LLC, 2009 WL 1559813 (E.D.Pa. 2009), Judge Shapiro denied class certification in an FDCPA matter arising out of a form dunning letter which purported to violate the FDCPA. Judge Shapiro acknowledged that dunning letters under the FDCPA are analyzed under an objective standard from the perspective of the least sophisticated debtor, but nevertheless held… Read More
In Caballero v. Ocwen Loan Servicing, Inc., 2009 WL 1528128 (N.D.Cal. 2009), Judge Whyte quickly disposed of a Plaintiff’s argument that a loan servicer involved in the foreclosure of the Plaintiff’s home was subject to the FDCPA. Judge Whyte explained, in granting the loan servicer's Rule 12(b)(6) motion: Defendant seeks dismissal of the Fair Debt Collection Practices Act claim… Read More
In Kuschner v. Nationwide Credit, Inc. 2009 WL 1531574 (E.D.Cal. 2009), Judge Karlton ruled on whether a debt collector could assert a counter-claim against an FDCPA plaintiff due to the Plaintiff’s surreptitious recording of telephone calls between the Plaintiff and the debt collector. The Court had ruled that the debt collector should be allowed leave to file the counter-claim, and… Read More
In Hambrick v. Wells Fargo Bank, N.A., 2009 WL 1532676 (N.D.Miss. 2009), Judge Pepper required a Plaintiff to plead each element of the definition of “debt collector”, denying the Plaintiff the right to conduct discovery in order to be able to plead one of the elements. The issue involved whether, when Wells Fargo took assignment of the debt, the debt… Read More
On May 27, 2009, the Consumer Financial Services Law Report published our article entitled, "Does the Litigation Privilege Protect against Suits Filed under California's Rosenthal FDCPA?" at 13 Con. Fin. Serv. L. Rep. 3 (May 27, 2009). The publisher allowed us to reproduce it here. Source: Consumer Financial Services Law Report. Copyright 2009 by LRP Publications, P.O. Box 24668, West Palm Beach, FL… Read More
Arising from a workshop put on by the FTC, the FTC would recommend a number of changes to the FDCPA, including: 1. Increasing statutory damages 2. Requiring Debt Collectors to advise consumers of rights the consumers may have vis-a-vis the Debt Collector 3. Having Congress authorize FTC Rulemaking The FTC's Report can be found here. The FTC announced a… Read More
Although we assume that their FDCPA classes are quite good, we report that a district court magistrate in Tennessee refused an in pro per Plaintiff's request for an order requiring defense counsel to attend FDCPA classes at a local law school. The case arose in Livinston-Cross v. Bank of America, 2009 WL 1471126 (M.D.Tenn. 2009), where Judge Campbell relied on the… Read More
In Marlin v. Chase Cardmember Services, Inc. 2009 WL 1405196 (E.D.Cal. 2009), Judge Beck held that, in an FDCPA case, a counter-claim for the debt is permissive, rather than compulsory. Judge Beck explained: However, although the Ninth Circuit has not specifically decided whether a counterclaim for the underlying debt in an FDCPA action is compulsory or permissive, most, if… Read More
In Jones v. Midland Funding, LLC, --- F.Supp.2d ----, 2009 WL 1385140 (D.Conn. 2009), District Judge Martinez ruled on whether a debt collector could offer the testimony of a renowned author of a treatise on the FDCPA that collection letters were consistent with industry standards. The defendants offer Newburger as an expert “who will be called to provide an… Read More
In Wideman v. Monterey Financial Services, Inc., 2009 WL 1292830 (W.D.Pa. 2009), Magistrate Judge Hay held that an obtuse e-mail sent to a third party about a debtor could state a claim for third party disclosure violation under the FDCPA. In Wideman, the Plaintiff claimed that the debt collector violated § 1692c(b) when it left a message with the plaintiff’s… Read More
In Piontek v. IC System, Inc. 2009 WL 1044596 (M.D.Pa. 2009), Judge Rambo held that a Plaintiff seeking emotional distress damages put at issue other lawsuits she had filed. Here, Plaintiff's motivation for her actions giving rise to the suit, or for bringing the suit, are irrelevant to the issue of whether Defendants violated the FDCPA through their dealings… Read More
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
In Pickering v. Coast Center for Orthopedic Arthroscopic Surgery, 2009 WL 932629 (2009), the California Court of Appeal for the Fourth District, in an unpublished decision, reviewed a jury’s finding that an orthopedic doctor’s group was liable under the FDCPA notwithstanding its status as a creditor. The Court of Appeal affirmed the jury’s finding that the doctor’s group’s retention of… Read More
In Allers-Petrus v. Columbia Recovery Group,C08-4433FDB (D.Or. 2009), Judge Burgess held that a debtor's failure to disclose a pending FDCPA claim in her Ch. 13 Bankruptcy schedules judicially estopped her from bringing those claims later in the district court. Nor could the debtor re-open her bankruptcy to cure the issue. Judge Burgess explained: Plaintiff Allers-Petrus filed her bankruptcy petition with… Read More
In Rowe v. Educational Credit Management Corporation, 2009 WL 692006 (9th Cir. 2009), the Court of Appeals ruled on whether the Plaintiffs had pleaded a claim under the FDCPA against ECMC – a guaranty agency under the Higher Education Act of 1965 – or whether ECMC was exempt because its collection activity was “incidental to a bona fide fiduciary obligation.” … Read More
In Hahn v. Triumph Partnerships, LLC, the Court of Appeals for the Seventh Circuit held that the FDCPA's prohibition against "false, deceptive, or misleading representation or means in connection with the collection of any debt" under 15 U.S.C. 1692e requires materiality. In ruling on whether the debt collector had properly disclosed the debt and attendant interest, the Court of Appeals… Read More
The Federal Trade Commission today released the list of top consumer complaints received by the agency in 2008, identity theft topping the list. See the FTC Press Release: http://www.ftc.gov/opa/2009/02/2008cmpts.shtm FTC also issued its Annual Report to Congress, and urged modernization of Federal Debt Collection Law See the FTC Press Release: http://www.ftc.gov/opa/2009/02/fdcpa.shtm The FTC suggested many changes, including (1) Requiring… Read More
In Wahl v. Midland Credit, Inc. --- F.3d ----, 2009 WL 426055 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit addressed whether a debt collector used a false and deceptive means to collect a debt because it included in the “principal” balance amounts which the original creditor levied as “interest”. The Court of Appeals described Plaintiff’s argument… Read More
