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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 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 Youssofi v. Allied Interstate LLC, 2016 WL 29625, at *2-3 (S.D.Cal., 2016), Judge Curiel struck an FDCPA defendant's assertion of FDCPA pre-emption over the Rosenthal Act. Plaintiff argues that these affirmative defenses fail as a matter of law and cites to the holding in Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011). Defendant opposes contending… Read More

In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More

In Jacobson v. Persolve, LLC, 2014 WL 4090809 (N.D.Cal. 2014), Judge Koh found an FDCPA class-action defendant’s Rule 68 offer to the class representative did not moot either the Action or the represenative’s ability to bring class claims. The Court agrees with Persolve that Plaintiff's Motion to Strike Persolve's Offer of Judgment is procedurally improper. Persolve's Offer of Judgment was… Read More

In Smith v. Law Offices of Patenaude & Felix, A.P.C., 2014 WL 3695473 (S.D.Cal. 2014), Judge Hayes found that a debtor must plead by clear and convincing evidence that the debtor did not receive a debt validation letter from the debt collector. Congress enacted the FDCPA to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting… Read More

In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring.  The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More

In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses.  Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More

In Raab v. Nationwide Collection Agencies, Inc., 2013 WL 53760 (W.D.Mich. 2013), Judge Bell found Plaintiff's threadbare FDCPA claim that defendant wrongfully threatened to garnish her wages failed to state a claim. The statutory violations alleged are simply a formulaic recitation of the prohibitions contained in the statutes. Plaintiff has not alleged what Defendant said or did to represent or imply that… Read More

In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More

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