FDCPA (Fed & State)

In Hayward v. Bank of Am., N.A., No. 2:16-cv-03047-MCE-DMC, 2020 U.S. Dist. LEXIS 60318, at *19-25 (E.D. Cal. Apr. 6, 2020), Judge England denied summary judgment in a Rosenthal Act case. In support of her Second Claim, for violation of California's Rosenthal Act, Plaintiff alleges that [*20]  BANA made harassing calls to Plaintiff and in so doing used false and unconscionable… Read More

In Bryan v. Credit Control, LLC, No. 19-244-cv, 2020 U.S. App. LEXIS 10519, at *7-9 (2d Cir. Apr. 3, 2020), the Court of Appeals for the Second Circuit gave guidance on disclosure of "true creditor" in a credit card collection transaction for a credit card for a private label retailer. In arguing that Credit Control violated Section 1692g, Bryan insists… Read More

In McAdory v. DNF Associates, LLC (9th Cir. 2020), the Court of Appeals for the 9th Circuit followed the Third Circuit’s decision in Barbato v. Greystone All., LLC (3d Cir. 2019) 916 F.3d 260, to find that a company whose principal business activity is buying defaulted debts from creditors is a "debt collector" for purposes of the FDCPA even if… Read More

In Cagayat v. United Collection Bureau, Inc, No. 19-3431, 2020 U.S. App. LEXIS 7234 (6th Cir. Mar. 9, 2020), the Court of Appeals for the Sixth Circuit adopted and expanded the Third Circuit’s  Douglass decision to apply to an enclosed letter’s text that bleeds through an envelope. The Letters attached as exhibits do not utterly discredit Cagayat's assertion that the… Read More

In Faircloth v. AR Res., Inc., No. 19-cv-05830-JCS, 2020 U.S. Dist. LEXIS 28335 (N.D. Cal. Feb. 19, 2020), Judge Spero found that the discovery rule did not apply to either the FDCPA or Rosenthal Act. 1. The Discovery Rule Does Not Apply to the FDCPA.  Defendant claims that the FAC should be dismissed because claims brought under the FDCPA and… Read More

In Allen v. Credit Collection Servs., No. 2:18-cv-00929-MCE-KJN, 2020 U.S. Dist. LEXIS 27363 (E.D. Cal. Feb. 18, 2020), Judge Englund dismissed an FDCPA claim on the basis that the call number and pattern did not constitute harassment under the FDCPA. Plaintiff maintains that, despite CCS' call logs and telephone recordings of the two actual conversations its representatives had with Plaintiff… Read More

In Lynaugh v. Vincent, No. CV-19-04643-PHX-DJH, 2020 U.S. Dist. LEXIS 23246 (D. Ariz. Feb. 10, 2020), Judge Humetewa found that attorneys’ fees awarded in an underlying consumer litigation was not a debt incurred on a consensual basis and, accordingly, did not arise from a “transaction” under the FDCPA. The Court will first examine Defendants' contention that the attorneys' fees judgment… Read More

In Robertson v. AllianceOne Receivables Mgmt., No. 1:19-cv-00749-DAD-SKO, 2020 U.S. Dist. LEXIS 15768 (E.D. Cal. Jan. 29, 2020), Judge Drozd dismissed an FDCPA overshadowing claim. AllianceOne contends the validation statement in its notice is not overshadowed or contradicted by other messages appearing in the notice. AllianceOne also argues that the least sophisticated debtor would not construe the notice to have demanded… Read More

In Poghosyan v. First Fin. Asset Mgmt., No. 1:19-cv-01205-DAD-SAB, 2020 U.S. Dist. LEXIS 14137 (E.D. Cal. Jan. 27, 2020), Judge Drozd found that a plaintiff might be able to state a claim for improper debt collection under the CLRA. Although the California Supreme Court has not yet addressed whether the CLRA applies to certain types of financial transactions such as… Read More

In Preston v. Midland Credit Mgmt., No. 18-3119, 2020 U.S. App. LEXIS 1775 (7th Cir. Jan. 21, 2020), the Court of Appeals for the Seventh Circuit rejected a ‘benign language’ exception to section 1692f(8), finding that an envelope’s label “TIME SENSITIVE DOCUMENT” potentially violated the FDCPA. Following his receipt of the letter, Mr. Preston filed this action in which he… Read More

In Flecha v. Medicredit, Inc., No. 18-50551, 2020 U.S. App. LEXIS 481 (5th Cir. Jan. 8, 2020, the Court of Appeals for the Fifth Circuit reversed class certification in an FDCPA case. This class fails for similar reasons. Every member of the putative class received the same allegedly threatening letter from Medicredit. But the FDCPA penalizes empty threats, not all… Read More

In Rotkiske v. Klemm, 28 Fla. L. Weekly Fed. S. 8 (U.S. 2019), the Supreme Court rejected the application of a discovery rule in FDCPA cases. Rotkiske does not contest the plain meaning of §1692k(d)’s text or claim that he brought suit within one year of the alleged FDCPA violation. Instead, he suggests that we should interpret §1692k(d) to include… Read More

In Lima v. United States Dep't of Educ., No. 17-16299, 2019 U.S. App. LEXIS 37472, at *9 (9th Cir. Dec. 18, 2019), the Court of Appeals explained: The FDCPA exempts from the definition of debt collector "any person collecting or attempting to collect any debt . . . owed or due another to the extent such activity . . .… Read More

In Stimpson v. Midland Credit Mgmt., No. 18-35833, 2019 U.S. App. LEXIS 37470, at *8 (9th Cir. Dec. 18, 2019), the Court of Appeals for the Ninth Circuit held that a debt collector did not violate the FDCPA in its dunning letter collecting on a stale debt. Stimpson first identifies the letter's statute-of-limitations disclosure as a primary example of misleading… Read More

In Reyes v. IC Sys., No. 3:19-cv-01206 (JAM), 2019 U.S. Dist. LEXIS 207563, at *1-5 (D. Conn. Dec. 3, 2019), the District Court held that simultaneously debt collectors' consumer reporting on the same debt did not violate the FDCPA. The Fair Debt Collection Practices Act (FDCPA) provides in relevant part that a debt collector may not use false, misleading, or… Read More

The House Financial Services Committee passed 8 bills, according to an announcement from Rep. Maxine Waters today: The Ending Debt Collection Harassment Act of 2019 (H.R. 5021), a bill by Representative Ayanna Pressley (D-MA), to amend the Fair Debt Collection Practices Act (FDCPA) to prohibit a debt collector from contacting a consumer by email or text message without a consumer’s… Read More

In Heredia v. Capital Mgmt. Servs., L.P., No. 19-1296, 2019 U.S. App. LEXIS 33444, at *4 (7th Cir. Nov. 8, 2019), the Court of Appeals for the 7th Circuit held that a debt collector's reference to the possibility of issuing a 1099-C was materially misleading, at the pleadings stage. The language at the crux of this lawsuit is the part… Read More

In Koehler v. Waypoint Res. Grp., No. 8:18-cv-2071-T-60AAS, 2019 U.S. Dist. LEXIS 191438 (M.D. Fla. Nov. 5, 2019), the District Court held that a debt collector’s reporting of a cable bill to the CRAs did not trigger the FDCPA. All of Koehler's FDCPA claims are based on Waypoint's error in reporting the original creditor as "Charter Communications" rather than "Bright… Read More

In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More

In Nagan v. Optio Sols. Llc, No. 19-C-170, 2019 U.S. Dist. LEXIS 173286, at *7 (E.D. Wis. Oct. 4, 2019), the District Court held that an FDCPA class could be certified despite the fact that the classmember would receive almost nothing. Optio asserts that a class action is not the superior method of litigating the issues here because any amount… Read More