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FDCPA (Fed & State)

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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

In Rudek v. Frederick J. Hanna & Associates, P.C. 2009 WL 385804 (E.D.Tenn.2009), Judge Collier ruled on what constitutes proper verification of a debt in response to a debt collector’s 30 day letter under 15 U.S.C. § 1692g(b). Judge Collier held that independent validation requiring proving the merits of the obligation is not required:   Defendant contends it complied with… Read More

In Gerber v. Citigroup, Inc. 2009 WL 248094 (E.D.Cal.2009), District Judge Moulds followed the Southern District's opinion in Sial v. Unifund CCR Partners, 2008 WL 4079281 (S.D.Cal.Aug.28, 2008) (see http://www.calautofinance.com/?p=85), and rejected both the Norr-Pennington doctrine and the litigation privilege as defenses to a Rosenthal Act claim. This court is unpersuaded that the Noerr-Pennington doctrine bars actions under the FDCPA. Rather, this… Read More

In Van v. Grant & Weber, the Court of Appeals for the Ninth Circuit held in an unpublished decision that including in collection letters certain location obligations permitted under the Rosenthal Act does not violate the FDCPA.  The Court of Appeals explained: Van argues that this statement is misleading because California Civil Code § 1788.21(b) requires such notification only in… Read More

In Offril v. J.C.Penney, Inc., 2009 WL 69344 (N.D.Cal. 2009), Judge Hamilton held that notice by a consumer to a creditor that it was represented by counsel did not, for purposes of the FDCPA, constitute notice to the collection agency hired by the creditor to collect the debt.  Judge Hamilton explained:  Although plaintiff did not allege or argue that JC Penny's actual knowledge of… Read More

In Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), Judge Zimmerman gave guidance on what constitutes a permissible "statement of account" which may be sent to consumers notwithstanding notice that the consumer is represented by counsel.  Civil Code §1788.14(c) prohibits a debt collector from initiating communications with the debtor about a consumer debt, other than to provide a statement… Read More

In Cassaday v. Union Adjustment Company, Inc. 2008 WL 4773976 (N.D.Cal. 2008), Judge Illston followed the decision in Sial v. Unifund CCR Partners, 2008 WL 4079281, *3-5 (S.D.Cal. Aug.28, 2008) by refusing to apply the Noerr-Pennington doctrine to bar FDCPA claims.  However, Judge Illston did not follow Sial's holding that the litigation privilege does not provide a defense to FDCPA… Read More

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