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In Wiebe v. Zakheim & Lavrar, P.A., 2012 WL 5382181 (M.D.Fla. 2012), Judge Smith found that a debt collector had adequately pleaded facts supporting a ‘bona fide error’ affirmative defense. The Defendant's First Affirmative Defense of “bona fide error,” is based upon 15 U.S.C. § 1692k(c) which provides that under the FDCPA, a debt collector is shielded from liability if… Read More

In Ansari v. Electronic Document Processing, Inc., 2012 WL 3945482 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to FDCPA affirmative defenses. This Court previously considered both of Defendants arguments in Perez. With respect to Defendants' first argument, as set forth in Perez, notwithstanding the textual differences between Rule 8(a)(2) and Rule 8(b)(1)(a), “it is well established that ‘[a]ffirmative defenses are governed… Read More

In Ear v. Empire Collection Authorities, Inc., 2012 WL 3249514 (N.D.Cal. 2012), Judge Conti addressed the post-Iqbal/Twombly standard required for pleading affirmative defenses under the Rosenthal Act/FDCPA. It is true that there is a split within this circuit, but judges in this district have, uniformly so far as the undersigned can tell, adopted the plausibility standard. E.g., Barnes v. AT… Read More

In Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425 (N.D.Cal. 2012), Judge Koh applied Iqbal/Twombly to a debt collector’s affirmative defenses, and addressed what affirmative defenses are available to an FDCPA/Rosenthal Act claim. Next, the parties dispute the scope of defenses available to Defendants under the FDCPA. Plaintiff argues that all of Defendants' affirmative defenses, except for… Read More

In Gutierrez v. State Farm Mut. Ins. Co.,  2012 WL 398828 (N.D.Cal. 2012), Judge Davila addressed the rights of a non-contracting spouse to sue under an automobile RISC and under the Rosenthal Act.      Plaintiffs are husband and wife.  Husband purchased a limited edition 2007 Pontiac Solstice (the “vehicle”), financed by defendant finance company.  Husband contracted with Defendant State… Read More

In Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221 (N.D.Cal. 2012), Judge Conti imposed the higher Iqbal/Twombly pleading standards to a debt collector’s pleading affirmative defenses.    The parties dispute which standard should apply to the instant motion. Plaintiffs urge this Court to apply the heightened “plausibility” pleading standard that some district courts have derived from the Supreme… Read More

In Vasquez v. State Recovery Systems, Inc., 2011 WL 6012326 (E.D. Cal. 2011), Judge Burrell found Plaintiff’s recitation of the legal requirements of the Rosenthal Act and FDCPA insufficient to state a claim under Iqbal/Twombly.    Plaintiff's FAC essentially comprises the following allegations: “Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6) and Cal. Civ.Code… Read More

In Lopez v. Professional Collection Consultants, 2011 WL 4964886 (C.D.Cal. 2011), Judge Gutierrez granted a debt collector's Motion to Dismiss a telephonic harassment case, with leave to amend, holding: There are no facts alleged as to the content of the calls. And the confusing statement that Defendant made “up to three [ ] collection calls five [ ] times per week”… Read More

In Murphy v. Stephens & Michaels Associates, Inc., 2011 WL 1465761 (S.D.Cal. 2011), Judge Lorenz held that, at the pleading stage, whether a defendant was a “debt collector” was an affirmative defense for which Defendant owed the burden, not Plaintiff’s pleading burden. Plaintiff alleges a factual basis for relief she seeks under the FDCPA and the Rosenthal Act. Defendant argues… Read More

In Caudell v. Financial Credit Network, Inc., 2011 WL 1377643 (E.D.Cal. 2011), Judge O’Neill applied Iqbal/Twombly to find that Plaintiff had not adequately pleaded obscene or profane communications in connection with debt collection, nor did Plaintiff’s allegations of daily telephone calls rise to the level of pleading harassment. 15 U.S.C. § 1692d(2) “was meant to deter offensive language which is… Read More

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